Band 15, Heft 1 - Special Issue: The Principles of European Tort Law. Where are the Gaps – and How to Fill Them, Part 2 / Guest Editors: Christine Chappuis, Doris Forster and Thomas Kadner Graziano

The rule on strict liability is regarded by many specialists as the central building site of the Principles of European Tort Law (PETL). The following contribution first gives a brief overview of the current state of the law in Europe regarding this area, which is of enormous importance in European practice. It then presents rationales for the introduction of strict liability with a precise proposal for a rule restating the current state of the law from a European-wide perspective, while, at the same time, allowing the courts sufficient flexibility in reaching a decision in individual cases.

The authors of the Principles of European Tort Law (PETL) did not intend to regulate in detail the strict liability of a manufacturer for damage caused by a defect in its product. While creating general principles of liability for damage caused otherwise than by breach of an obligation, they had no need to refer to those problems for which uniform and detailed solutions already existed in the European Communities. Product liability was such a problem (the only one in the area of tort law, by the way). Given the existence of the 1985 Product Liability Directive, there was no need to look for an answer to the issue of the victim’s claim against the producer in the PETL’s provisions on strict liability (art 5:101 PETL) or on fault-based undertaking liability (art 4:202 PETL). However, the need for this has emerged in recent years. As technology and business models have developed, new possibilities of harm to users of products (in the broad sense of the latter term) and third parties have emerged, which seem to call for the liability of the manufacturer or commercial intermediaries. This liability, however, cannot be based on 1985 Product Liability Directive (PLD) provisions. The question therefore arises whether the Principles adopted in 2005 would be a sufficient foundation upon which such a liability rule could be built. The article discusses some of these new damage scenarios and explains why neither the narrow approach to strict liability in PETL nor its fault-based enterprise liability rule yields satisfactory results in relation to them. It then outlines the current proposal for a new European product liability law, aiming to fill these liability gaps.

By concluding a contract, parties intend to allocate the contractual risk between them. This means that parties must anticipate any future adverse result and determine whether a party will have to cover any loss incurred by the other party as a result of performance or, more often, bad performance. In sales contracts, for example, parties may decide to exclude any liability for defects of goods, especially when selling used goods or for other reasons, or at least to limit liability for some defects or to limit types of possible claims. Similarly, in mergers and acquisitions, parties very strictly determine what is known by the seller in a disclosure letter and give the buyer access to some information in a data room prior to the conclusion of the contract to limit liability to the unknown and the non-disclosed. CA Hill / BJM Quinn / SD Sollomon , Mergers and Acquisitions, Law, Theory, and Practice (2019) 372–403; R Tschäni / H-J Diem / M Wolf (eds), M&A-Transaktionen nach Schweizer Recht (3rd edn 2021) 209–215 (paras 420–431); O Duys/K Henrich in: W Hölters (ed), Handbuch Unternehmenskauf (8th edn 2015) ch 16, paras 16.108–16.116. For each party, much of contractual drafting boils down to limiting risk to the greatest extent possible, or at least to ensure compensation for any risk incurred. If parties are on an equal footing, this may lead to an equitable allocation of risk and a balanced contractual liability regime. Contractual limitations of liability are, therefore, part of this process of adequate allocation of risks. In this contribution, I will briefly address three issues. First, I will look at which principles are applicable to the validity of limitations of contractual liability (I) and then determine to what extent these principles apply to tort claims (II). This will finally lead me to determine whether the Principles of European Tort Law (PETL) need to be supplemented by a further rule dealing with the validity of contractual clauses limiting liability in tort (III).

How can tort law contribute to combatting climate change? The Principles of European Tort Law (PETL), in particular the framework of art 4:102 PETL, have already served as inspiration for a duty of care for both governments and companies, aimed at reducing greenhouse gas emissions. This is in line with the development of law in Europe, where liability for an insufficient contribution to combatting global warming is becoming increasingly concrete. The PETL, therefore, do not necessarily need to be amended on this point. However, the development could be strengthened in two ways. First, it is proposed to amend art 4:102(3) PETL, providing that the duty of care may be determined in part by reference to internationally recognised fundamental rights and international documents that constitute a breach of duty for companies. Secondly, making room in the PETL for injunctive relief would do justice to the need to take preventive measures, as, in climate cases, preventing global warming is more urgent than ex post compensation.

This paper provides detailed, article by article commentary on the Principles of European Tort Law (PETL) from the perspective of one of the authors. It highlights areas where, in his opinion, improvements should be made as part of the ongoing process of revision.

This paper presents a critical appraisal of the criteria in the Principles of European Tort Law (PETL) for imputing liability to one person for damage suffered by another and a plea for a simplified system with a more extensive area of strict liability than is to be found in the current Principles.