Should Wrongfulness be Required or is Fault Enough? Arts 1:101, 4:101 ff PETL

A German vs French approach

Before getting into the details, it is helpful to recall the basic elements of fault-based liability under German law according to sec 823(1) of the Civil Code.^[6] For an action to be based on this provision, the claimant must satisfy the following requirements: first, there must be a breach of one of the enumerated rights or interests, that is life, body, health, freedom, property, or ‘another right’ recognised by the courts; secondly, this interference must be wrongful (rechts­widrig); thirdly, there must be fault (Verschulden), that is conduct which is either intentional or negligent; finally, there must be a causal link between the defendant’s conduct and the claimant’s harm as well as between this harm and a reparable loss.

This shows that, unlike in France, tort law in Germany keeps the element of fault separate from that of wrongfulness.^[7] Whereas Verschulden is understood as intentional or negligent conduct, Rechts­widrig­keit indicates the violation of a legal norm and the absence of a legally recognised excuse.^[8] The matter is much more complicated when it comes to the exact object of wrongfulness. Traditionally, one considers that the element of wrongfulness is automatically satisfied whenever one of the enumerated rights or interests has been violated; in other words, wrongfulness depends on, and arises from, the harmful result (Erfolgs­unrechts­lehre) and is neutralised only in cases in which the defendant can establish a legally relevant excuse (Recht­fertigungs­grund), such as self-defence, necessity or consent.^[9]

However, in the 1950s and 1960s, influential scholars such as Nipperdey^[10] or von Caemmerer^[11] developed another way of understanding wrongfulness. According to these authors, Rechts­widrig­keit should be determined by looking not at the result of the conduct, but at the conduct itself; that is why this doctrine is called Handlungs­unrechts­lehre. The practical impact of this theoretical debate (Meinungs­streit) is almost none,^[12] as the courts do not adopt a single approach and adjust their reasoning to specific tort law constellations. However, for our topic, it is important to recognise that the second theory tends to bring fault and wrongfulness together, as the lack of reasonable care is seen as a part of the concept of wrongfulness, decreasing the importance of fault.^[13]

Under current German case law, both ideas have their legitimate place. The courts still admit that the element of wrongfulness is automatically satisfied whenever one of the enumerated rights or interests has been violated directly. However, in the case of an indirect infringement or a violation by inaction or when a ‘new interest’, brought under the term ‘other rights’, is concerned, the judge will have to carefully balance the conflicting interests.^[14]

The presentation of fault-based liability under French law, according to arts 1240–1241 Code Civil, is much shorter. In France, all law students in their second-year tort law course learn that the basic requirements are the existence of a fault, a loss and causation between both, presented as ‘the famous trilogy’ of fault-based liability. It is commonplace to emphasise the ‘broad approach’ of the French understanding of fault.^[15] Since 1804, generations of civil lawyers have tried to elaborate viable definitions of the concept of fault, without any notable success. While there is agreement on the idea that faute reflects the breach of a duty of conduct, there is still much opacity as to its exact outlines. Moreover, it is not unusual for French courts to deduce the existence of fault from the mere proof of harm or vice-versa, blurring boundaries between the requirements of liability.^[16]

As Bénédict Winiger explains in his monography on wrongfulness under the ‘common law’ (or ius commune), the drafters of the French Civil Code and the legal scholars back in the 15th and 16th centuries progressively departed from the doctrine of wrongfulness and fault, considered as two distinct requirements, to a unitary approach where wrongfulness is enshrined or even implied in the concept of fault.^[17] This position is still valid today in French law, as the wrongful or unlawful character of the defendant’s conduct is not a distinct prerequisite.^[18]

However, it would be wrong to say that illicéité is completely absent from the French law of torts. In scholarship, there have been some attempts to restore the distinct meaning of this concept, with little success so far.^[19] There is one field of tort law where illicéité seems to have a life of its own, detached from the overshadowing idea of fault: that is, injunctive reliefs. The French Code of Civil Procedure allows claimants to request injunctions when confronted with the ‘risk of imminent harm’ or exposed to ‘wrongful nuisance’ (trouble illicite).^[20] It is not clear whether the legal term illicite is only used as a synonym for fault in this context or if there are cases in which a nuisance arising from another person can be illicite without qualifying as fault.^[21]

B Case 1: Sports accidents

After this introduction to the current state of French and German tort law, I will come now to the case of sports accidents. In every jurisdiction, such cases challenge tort law rules as the standard of civil liability needs to be adjusted.^[22] It would not make sense to apply the same rules to a personal injury occurring in a sporting context, for example a ruptured cruciate ligament after a tackle during a soccer game, as for an injury caused under ordinary circumstances. But how can this adjustment of the standard of conduct be translated in legal terms?

Under French law, there is no specific legal concept that is used to explain the modification of the way fault is assessed in this context. Courts take into account the risk of being physically injured, inherent to most sports, following, therefore, a more liberal approach to fault-based liability. Indeed, a claimant has to establish a ‘deliberate failure to comply with sports rules’ in order to be awarded compensation under tort law rules.^[23] Usually, this is presented as a ‘correction’, a sort of ‘fine tuning’ of the assessment of fault. The French concept of faute may thus appear to foreign tort lawyers like an ‘umbrella concept’ which encompasses many different arguments leading to liability (or to an exemption of liability). Indeed, the doctrine of acceptation des risques (‘acceptance of risk’), as well as the defence of consent, are used to raise the threshold of fault in those cases, without a need for any further conceptual framework.^[24]

The situation under German law is surprisingly ambiguous, as there is a gap between the assessment in legal scholarship and case law.^[25] While everyone agrees on the need to adjust liability rules in a sporting context, there is no agreement on what exactly has to be adjusted in the field of civil liability. Whereas legal scholarship tends to see in the concept of wrongfulness (Rechts­widrig­keit) the relevant adjusting tool,^[26] the Federal Court of Justice and trial courts adopt a more complex approach.^[27] The courts tend to distinguish between a subjective and an objective dimension of the standard of care (äußere und innere Sorgfalt), which tends to bring together the yet distinct requirements of fault and wrongfulness.^[28] However, in the context of sports accidents, as some scholars point out, it seems almost impossible to implement this distinction, as irregular conduct of a soccer player will often be contrary to both the subjective and objective dimension of the standard of care.^[29]

Under the PETL, there is no doubt that the conceptual distinction between fault and wrongfulness is not relevant, which eliminates a source of legal complexity. Article 4:102 lists the elements which allow an adjustment of the ‘required standard of care’, a legal tool that the PETL drafters have encapsulated in the concept of fault.^[30] In the particular context of sports, several criteria may be used to adjust the threshold of liability: the ‘dangerousness of the activity’, the ‘foreseeability of the damage’ and possibly even the ‘relationship of proximity or special reliance between those involved’; as for the idea of consent, it is expressed in art 7:101 as a ‘defence based on justification’.^[31] All in all, the PETL follow a simpler approach than German law, while offering a more complete set of rules than under French law, by laying out the different variables for the adjustment of the standard of civil liability.

C Case 2: Infringement of personality rights

The second case study examines the way to assess, in terms of fault and wrongfulness, the infringement of personality rights. Over the last decades, privacy litigation has raised interest among comparative tort law scholars, not only due to its practical importance, but also because of its theoretical aspects.^[32]

As in many other jurisdictions, the legal protection of personality rights evolved quite spectacularly under French law over the course of the twentieth century. Based on the constitutional and international dimension of individual fundamental rights and on art 9 Civil Code,^[33] French courts have recognised numerous facets of personality interests which are protected by tort law against infringement by others.

Despite the doctrinal interest in this litigation, the appreciation of fault has not fundamentally altered in the context of privacy litigation.^[34] Most authors consider that the assessment of fault does not differ from that observed in other cases, even though the case law does not refer consistently to the ‘reasonable person’ test. Whether there has been misconduct or not appears more like a matter of balancing (mise en balance) conflicting rights. An infringement of the right to privacy often comes into conflict with the principle of freedom of the media to inform society of matters of public interest, or with consent.^[35] When taking a closer look at the case law, it appears that the method used by courts to determine whether or not a fault was committed by the defendant is very similar to that adopted for the purposes of constitutionality review (contrôle de constitutionnalité): it is primarily a question of estimating the respective weight of two competing principles and determining the proportionality of the defendant’s infringement.^[36]

Once again, there is no specific legal concept used to adjust the application of fault-based civil liability. Instead of refining the theoretical framework underlying the concept of faute, legal scholarship focuses on a much more practical issue, which is the scope of arts 1240–1241 Civil Code in the field of privacy litigation. Indeed, in a 2000 landmark case, the Court of Cassation held that the general clause of liability for fault should not apply to cases which fall under the definition of two criminal offences laid out in the Freedom of the Press Act of 23 July 1881.^[37] According to this decision, the claimant has to establish the existence of one of those two offences, which requires the demonstration of malice and the compliance with a set of procedural rules designed to protect editors and media directors.^[38] Yet, this distinctive feature of privacy litigation is not based on a specific concept used to raise the liability threshold. It is generally seen as a mere variation of the wide notion of faute.

The situation under German law is different. In 1954, the Federal Court of Justice recognised a ‘general right to one’s personality’ (allgemeines Persönlich­keits­recht) as one of the ‘other rights’ referred to in § 823(1) BGB.^[39] By doing so, the court inverted the decision of the drafters of the BGB to exclude non-material rights from the scope of extra-contractual liability, as it was then seen as unacceptable for the ‘better circles of society’ to place non-material interests on the same level as property interests.^[40] Since 1954, the trial courts as well as the Federal Court of Justice have established comprehensive case law on the legal protection of the various aspects of personality (image, name, honour, etc).

For the purposes of wrongfulness, the ‘general right to one’s personality’ is seen as a Rahmenrecht, that is, an interest which is not protected in an absolute manner, but only by taking into consideration the context of the infringement.^[41] This means that wrongfulness does not arise automatically from the infringement of a personality right, but has to be established separately by balancing the different interests, as under French law. However, this approach becomes problematic in the (rather frequent) cases of intentional violation of personality rights. Indeed, some tort law scholars tend to deduce wrongfulness from the mere intentional character of the infringement of the claimant’s right, without balancing the conflicting interests or delineating the scope of protection of tort law.^[42] This anomaly has led several authors to criticise the German approach of wrongfulness as inconsistent and improperly implemented in the case law under sec 823(1) BGB.^[43]

When it comes to the PETL, there is interestingly no explicit mention of personality rights, neither in the Principles themselves,^[44] nor in their Commentary.^[45] Unlike the provisions in Book VI of the Draft Common Frame of Reference,^[46] the list of protected interests laid out in art 2:102 PETL only refers to ‘human dignity and liberty’, but not explicitly to the various personality rights that are nowadays recognised in all national tort systems. The silence of the PETL drafters implies that the appreciation of fault follows the general rule of art 4:102, which leaves some room for the balancing of interests, as ‘the required standard of conduct ... depends, in particular, on the nature and value of the protected interest involved’. As for the idea of consent, it is expressed in art 7:101 as a ‘defence based on justification’.^[47] Given the great practical importance of personality rights litigation, providing more visibility to personality rights in a future version of the PETL should be considered. However, the approach midway between the poorly conceptualised French tort law and German tort law, which some might regard as ‘over-dogmatic’, is probably the only way to find a common ground to the issue of wrongfulness in continental Europe and should be maintained.

In this chapter, the assessment of both case studies was limited to the PETL as well as to tort law in France and Germany. These jurisdictions present a contrasting picture, which is, however, not representative enough of the diversity of tort law systems that opt for a less radical approach. A brief glimpse at tort law systems influenced by both jurisdictions will give some further insight.