Protupravnost kao pretpostavka odštetnopravne odgovornosti u hrvatskom pravu

Abstract

The paper analyses, through the lens of case-law, some basic questions relating to unlawfulness in Croatian tort law, such as: Is unlawfulness a condition for liability? What are the elements of unlawfulness? What does unlawfulness relate to? What is the relationship between unlawfulness and fault? Based on what criteria should unlawfulness be assessed? The analysis conducted in this paper undoubtedly demonstrates that unlawfulness is a much more complex and dynamic notion than suggested in Croatian legal literature. In this respect, the analysis suggests that, when assessing unlawfulness of a tortfeasor’s actions, courts in Croatia often rely on some subjective elements legal literature commonly associates with fault. Furthermore, the analysis also demonstrates that, in the course of assessing unlawfulness of a tortfeasor's actions, courts in Croatia often take into consideration a number of elements, such as the nature and importance of the rights and interests involved, the level of peril involved in a particular activity, the level of violation of protective norms, availability of alternative protection measures, foreseeability of damage, but also the interplay between these elements. All this leads the author to the conclusion that the notion of unlawfulness, as understood in Croatian case-law, closely resembles the French notion of faute.