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

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

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

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

Synopsis

This awe-inspiring book is the first of a two volume treatise on the law of non-contractual obligations. The result of a unique attempt to discover the common elements of the law of torts of all the member states of the European Union, it is founded on the belief that the approximation of European laws should not be left to the directives and regulations of Brussels alone. The first task of such a project is to determine to what extent a jus commune europaeum already exists. To this end, von Bar has undertaken a thorough, detailed and extensive analysis of the relevant court rulings and academic writings of all the jurisdictions of the European Union to distill a European common law of torts. The insights gained from the comparative analysis also offer a guidance to greater harmonisation in the future. The material covered in volume one includes: the areas of application of tort law and its boundaries with contract, property, criminal and constitutional law; the elements of liability under the general clauses of the European civil codes and the more specific torts of the common law. Further topics include: strict liability, liability for other persons, animals and premises; multiple tortfeasors; and an account of European Union and Council of Europe attempts to harmonise the less coherent areas of tort law. Von Bar's book is destined to become a landmark in the area of comparative law in general, and comparative torts in particular. From the author's preface The attempt undertaken here to draw up a system of a common European law of torts is an orthodox treatise on the non-contractual law of obligations. This book displays distinctive features only in so far as its material stems from all the laws of tort within the European Union. It seemed possible to understand and portray each tort law as merely a national manifestation of a single discipline. For, although different legal practices which have each grown naturally in their own environment do occasionally lead to different results, they can be dealt with in the same way as a single legal system in which a lawyer has to find his way through a variety of opinions. The person who looks, not only at his own, but also surrounding laws, broadens the range of possible debate. In writing about different laws he undertakes work fundamentally no different from that on his own legal system, so long as the systems are equal in their basic values, in the quality of their legal method, and have continuously learned from each other. This is the case in the countries of the European Union, and it is therefore possible to condense their different national laws to a common European law of torts (or delict). To try to understand its structures does not mean leaving distinctive features of individual nations out of consideration. Without an understanding of their effectiveness and their elegance, the treasure of judicial knowledge, which distinguishes European private law, will not be appreciated. However, to think in a European fashion firstly means stressing the common characteristics, secondly, learning to understand national laws as reactions to developments in neighbouring countries, and thirdly, tackling historical coincidences and rough edges European politics is not our primary concern, and the question whether reflections on common European private law can flow into a general law, that is to say into an extensive unification of law in the fashion of a Civil Code, is altogether a cura posterior. The challenge is to identify how the sixteen systems actually function, not how they would function were they united in one system. we are portraying here, not a single national law in comparison with other laws, rather we have chosen from the start a European standpoint; European meaning the states of the European Union

Excerpt

I am greatly honoured to be invited to write a Foreword to the English edition of ProfessorChristian von Bar book entitled The Common European Law of Torts.

Comparative Lawyers in this country have been eagerly looking forward to the SYSTEMation of this book in English. They will not be disappointed. Here is surely one of the most remarkable, and significant, books on comparative law ever to have seen the light of day.

The book is based on a study of the Law of Torts in all sixteen countries of the European Union. the logistics alone are formidable. Thousands of cases, from all these countries, have been translated into the German language and, as Professor von Bar tells us in his Preface, subjected to examination in a Permanent Seminar on the European Common Law of Torts. But the tasks of distillation, collation and synthesis of these many cases, as well as of the relevant statutes, have been performed by one man, as of course has been the creation of the text of this book. Professor von Bar states in his Preface:

'The person who looks, not only at his own, but also at surrounding laws, broadens the range of possible debate. in writing about different laws he undertakes work which is fundamentally no different from that on his own legal system, so long as the systems are equal in their basic values, in the quality of their legal method, and have continuously learned from each other.'

I cannot help feeling that this statement, while no doubt true in itself, conceals the scale of the operation, and fails to reveal the extraordinary knowledge and skill required to undertake so sophisticated an enterprise. the timeworn expression 'magnum opus' is scarcely adequate to describe this work.

As the reader will discover, a fundamental division is made between on the one hand the Codified Law of Delict of Continental Europe, and on the other hand Scandinavian Liability Laws and the Common Law of Torts. Two substantial sections are devoted to the description and exposition of these two subjects. Both are of profound interest. It is most enlightening for an English common lawyer to read a description of his own law as seen through they eyes of a German comparative lawyer. But it is also educative for him to discover the remarkable differences which exist between the codified systems themselves.

However the story does not stop there. There follow three more substantial sections, concerned with (1) Unification and Approximation of the Law of Delict within the European Union; (2) the Law of Delict in the Context of Private Law--i.e., in relation to Contract, Property Law . . .

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