International Bachelor of LAW Program 2018-2019
Tort Law Course Notes by 18024580 Page 1 of 15
Course notes
Lecture 1: Introduction – Comparative View
Tort law is the area of civil law (private law in code jurisdictions) that provides a remedy for a party who
has suffered the breach of a protected interest.
▪ Form of a Legal Source
Common Law
Principle extracted from case law
- Rules are decided and applied based on relevant facts.
- Common law principle: A court should follow the decisions of prior courts that have ruled on similar
cases to produce a predictable outcome. A court that hears a case that presents a new problem or
“case of first impression” has the obligation to find the appropriate legal rule (precedent).
A precedent can be either binding or persuasive. A decision from a superior court or from the same
court on the same set of facts is binding precedent under the doctrine of stare decisis. Decisions from
other jurisdictions or parallel courts are persuasive.
Sources of Law
- Case Law (binding precedent)
- Statutory Law
- Regulatory Law
European Code-based legal systems
- Statutory law e.g. Civil Codes
1804 Code Napoléon – Civil Code understood by everyone;
1900 Bürgerliches Gesetzbuch – technical Civil Code;
1942 Codice Civile Italiano
- Rules are laid down by the legislator
Usually general rules that allow national courts to further develop this area of law
- Systematic approach
- Academic writings are very important in the development of the (private) law
e.g. BGB (German Civil Code) also known as Professorenrecht (law made by professors) – national courts very
often discuss the opinions of legal authors in their decisions
- Case law has an equal role as Common Law
Remember: case law has developed this area of law because the legislator has not drafted specific rules to cover
each aspects of everyday life
▪ Legal Reasoning Methods
Common Law
The rule is extracted from a case in a jurisdiction where a court has decided the matter based on the same
of similar facts.
Lawyers find a case with identical facts and extract a rule of law from the holding in that case (analogy),
then argue that that prior decision is binding on the current case because of stare decisis or it is
persuasive. The entire argument is based on the similarity of facts between the two cases.
Lawyers on the other side of the case may argue that the principle of law does not apply because the facts
are different or because the case is from a different court system that treats the issue differently
(distinguishing the case).
, International Bachelor of LAW Program 2018-2019
Tort Law Course Notes by 18024580 Page 2 of 15
European Code-based legal systems
- Deductive method of legal reasoning: from general to particular
- Lawyers start by analysing the legal rule and then they apply it to the facts of specific case at issue
▪ Functional Purpose of Tort
Common Law
- Corrective Justice (Ex Post): making the injured party whole
- Deterrence of Future Wrongdoing (Ex Ante)
o Corrective action for the benefit of the entire society
o Corrective private action in place of governmental action
o Requires an open, accessible court system
European Code-based legal systems
1. Reparation (ex post)
To restore as exactly as possible the status quo that was disturbed by the harm and to restore the
victim to the situation in which he would have been if the wrongful act had not occurred.
e.g. in kind or through monetary compensation
2. Recognition (ex post)
The victim has suffered a wrong or that his/ her right has been infringed
e.g. nominal damages or a court’s decision that someone’s right is infringed
3. Prevention (ex ante) | Rule 1:102 DCFR
Be careful: distinction between prevention, punishment and deterrence
- DCFR: no punitive damages – not consistent with the principles of reparation
- European code based legal systems: punitive damages are awarded especially in cases of violation
of a person’s personality rights (e.g. privacy) – BGH v Caroline of Monaco
▪ Quest for European Ius Commune
- Legislation of the EU: Treaty provisions, Regulations, Directives and case law CJEU
- European Convention on Human Rights: Case law of the European Court of Human Rights
- National tort laws in Europe
o Code-based jurisdictions
o Common law jurisdiction: England, Ireland, Cyprus and Malta
Europe’s national legal system is converging but still has differences.
Search for European Ius Commune
Ius commune: a combination of canon and Roman laws that led European legal education and shaped the
practice in European courts between the 12th and 19th centuries.
Origin is based on the fundamentals of Roman Law – 12th century with the discovery of the Justinian’s Digest.
In the 18th and 19th Century, there was a process of nationalization and codification of private laws e.g.
French Civil Code. After WWII, there were attempts to more cooperation among States and a search for a
new European ius commune in private law (especially as from the 1980s).
Tort Law Course Notes by 18024580 Page 1 of 15
Course notes
Lecture 1: Introduction – Comparative View
Tort law is the area of civil law (private law in code jurisdictions) that provides a remedy for a party who
has suffered the breach of a protected interest.
▪ Form of a Legal Source
Common Law
Principle extracted from case law
- Rules are decided and applied based on relevant facts.
- Common law principle: A court should follow the decisions of prior courts that have ruled on similar
cases to produce a predictable outcome. A court that hears a case that presents a new problem or
“case of first impression” has the obligation to find the appropriate legal rule (precedent).
A precedent can be either binding or persuasive. A decision from a superior court or from the same
court on the same set of facts is binding precedent under the doctrine of stare decisis. Decisions from
other jurisdictions or parallel courts are persuasive.
Sources of Law
- Case Law (binding precedent)
- Statutory Law
- Regulatory Law
European Code-based legal systems
- Statutory law e.g. Civil Codes
1804 Code Napoléon – Civil Code understood by everyone;
1900 Bürgerliches Gesetzbuch – technical Civil Code;
1942 Codice Civile Italiano
- Rules are laid down by the legislator
Usually general rules that allow national courts to further develop this area of law
- Systematic approach
- Academic writings are very important in the development of the (private) law
e.g. BGB (German Civil Code) also known as Professorenrecht (law made by professors) – national courts very
often discuss the opinions of legal authors in their decisions
- Case law has an equal role as Common Law
Remember: case law has developed this area of law because the legislator has not drafted specific rules to cover
each aspects of everyday life
▪ Legal Reasoning Methods
Common Law
The rule is extracted from a case in a jurisdiction where a court has decided the matter based on the same
of similar facts.
Lawyers find a case with identical facts and extract a rule of law from the holding in that case (analogy),
then argue that that prior decision is binding on the current case because of stare decisis or it is
persuasive. The entire argument is based on the similarity of facts between the two cases.
Lawyers on the other side of the case may argue that the principle of law does not apply because the facts
are different or because the case is from a different court system that treats the issue differently
(distinguishing the case).
, International Bachelor of LAW Program 2018-2019
Tort Law Course Notes by 18024580 Page 2 of 15
European Code-based legal systems
- Deductive method of legal reasoning: from general to particular
- Lawyers start by analysing the legal rule and then they apply it to the facts of specific case at issue
▪ Functional Purpose of Tort
Common Law
- Corrective Justice (Ex Post): making the injured party whole
- Deterrence of Future Wrongdoing (Ex Ante)
o Corrective action for the benefit of the entire society
o Corrective private action in place of governmental action
o Requires an open, accessible court system
European Code-based legal systems
1. Reparation (ex post)
To restore as exactly as possible the status quo that was disturbed by the harm and to restore the
victim to the situation in which he would have been if the wrongful act had not occurred.
e.g. in kind or through monetary compensation
2. Recognition (ex post)
The victim has suffered a wrong or that his/ her right has been infringed
e.g. nominal damages or a court’s decision that someone’s right is infringed
3. Prevention (ex ante) | Rule 1:102 DCFR
Be careful: distinction between prevention, punishment and deterrence
- DCFR: no punitive damages – not consistent with the principles of reparation
- European code based legal systems: punitive damages are awarded especially in cases of violation
of a person’s personality rights (e.g. privacy) – BGH v Caroline of Monaco
▪ Quest for European Ius Commune
- Legislation of the EU: Treaty provisions, Regulations, Directives and case law CJEU
- European Convention on Human Rights: Case law of the European Court of Human Rights
- National tort laws in Europe
o Code-based jurisdictions
o Common law jurisdiction: England, Ireland, Cyprus and Malta
Europe’s national legal system is converging but still has differences.
Search for European Ius Commune
Ius commune: a combination of canon and Roman laws that led European legal education and shaped the
practice in European courts between the 12th and 19th centuries.
Origin is based on the fundamentals of Roman Law – 12th century with the discovery of the Justinian’s Digest.
In the 18th and 19th Century, there was a process of nationalization and codification of private laws e.g.
French Civil Code. After WWII, there were attempts to more cooperation among States and a search for a
new European ius commune in private law (especially as from the 1980s).
