facades and interiors
MAURO BUSSANI AND VERNON VALENTINE PALMER
Where would it all lead if everyone could be sued… An ill-advised statement, a
rumor passed on, a false report, bad advice, a poor decision, a recommendation
for an unfit serving maid by her former employer, information given at the
request of a traveler about the way, the time, and so forth – in short, anything
and everything would make one liable to compensate for the damage that ensued
if there were gross negligence despite one’s good faith…
Rudolf von Ihering1
Our system of civil responsibility founded on the clausula generalis – it could
hardly be more generalis – of article 1382, has a knack of being everywhere at
once [le don de ubiquité], which, to our somewhat prejudiced eyes, creates an
In the area of tort liability, the strongest oppositions appear to be at the level of
general definitions. The extreme positions are represented by general scholarly
formulas and, a short distance behind, by overall legislative rules in France and
Germany, whereas, moving toward ‘midfield’, we find more specific statutory for-
mulations, the detailed scholarly solutions, and, finally, the operational rules ap-
plied by courts … The overall definitions generalize a rule instead of limiting its
application… damage would seem to be always compensable, or liability to be al-
ways dependent on a right. The operative rules, in contrast, are more articulated.
The goals of this chapter are twofold. First, we wish to provide a theoretical matrix that situates the issue of pure economic loss within each
1Jherings Jahrbücher für die Dogmatik des bürgerlichen Rechts, vol. 4 (Jena, 1861), 12–13.
2 J. Carbonnier, ‘Le Silence et La Gloire’, Dalloz 1951 Chron. 119.
3 R. Sacco, ‘Legal Formants: A Dynamic Approach to Comparative Law’, (1991) 39 American Journal of Comparative Law 343, 369.