The Common European Law of Torts: The Core Areas of Tort Law, Its Approximation in Europe, and Its Accommodation in the Legal System - Vol. 1

By Christian Von Bar | Go to book overview

Part 5: the Law of Delict in the Context of Private Law

A legal system is always a compact whole. In a myriad ways each area affects its neighbouring fields of law, and is influenced by them, in terms of its own content and system of design. This is particularly so in the law of delict or torts, the branch of law most often described, albeit rather simplistically, as 'liability outside contract'.1 It is only by understanding the forces affecting the law of delict at its margins that one can properly appreciate the full range of the field. We therefore consider next the position of delict in private law. The relationship between the law of torts and constitutional and criminal law is then considered (Part 6, nos. 553 ff.)

411

Within private law delict is most clearly related to contract law; it is at the juncture between them that the most taxing problems of demarcation and co-ordination occur (see below, section I). Even within one national legal system a range of overlaps and intersections arise with both the law of negotiorum gestio (conducting the affairs of another without his authority: see below at section II 1, nos. 507 ff.) and the law of unjust enrichment (below at II 2, nos. 516 ff.) These points of overlap become even clearer when the different national solutions are projected onto a common European screen. Particular points of overlap, with corresponding problems of concurrence of actions, can be traced back to the law of property, whose concept of absolute rights can affect the law of obligations in various ways (below at III, nos. 526 ff). However, the connec­` tions between the general rules of delict and special economic torts (the law of unfair competition, monopolies, liability for breach of commercial rights, and copyright) are not dealt with here. Although many legal systems overcome the concurrence déloyale with the help of the general law of obligations (as in France, Portugal, the UK, and The Netherlands, whose sixth book of the civil code [BW] devotes an entire section to unfair advertising) it would greatly exceed the framework of a comparative analysis of this size to include those areas. Our point of reference is therefore the law of obligations in the context of 'civil law', and not 'private law' as a whole. Indeed, a further limit is necessary. This study is restricted to civil property law, omitting inheritance and family law. This avoids discussion of conflicts with family-law founded obligations to pay damages, which are anyway marginal in nature. Family law and delict are only interwoven in their essentials where each assigns specific

412

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1
Above at nos. 1-3.

-423-

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