The Civilian Law of Delict: A Comparative and Historical Analysis

Abstract

Abstract This article explores the civilian tradition of the European law of delict. Part 1 tells the story of the birth of modern civil law of delict in the 19th century codifications in continental Europe, rooted in Roman law and Enlightenment Natural Law. Examples are the French and German codes, and the Japanese as a legal transplant. Fault, unlawfulness (Rechtswidrigkeit), damage, and causation are the central categories. Part 2 focuses on the challenges of industrialisation: enterprises as new actors, industrial accidents, technical risks, insurance. This part discusses the changes the civil law of delict and the common law of torts underwent to cope with these challenges. Part 3 draws some consequences from these developments. It outlines the basic structures of a postmodern civil law of delict, explicitly differentiating it from the law of torts, and as a basis for further developments in 21st century. This structure has three main features: liability for personal fault, liability for defective business activities, and Gefährdungshaftung.