Strict Liability in Contemporary European Codification: Torn between Objects, Activities, and Their Risks
Buyuksagis, Erdem, van Boom, Willem H., Georgetown Journal of International Law
I. INTRODUCTION II. CURRENT SOURCES OF STRICT LIABILITY A. Special Legislation B. Relaxing the Rules to Allow a Broader Scope of Strict Liability 1. By Way of Analogy 2. By Way of the Concept of Verkehrssicherungspflicht. 3. By Way of Custodian Liability C. Problem of Legal Uncertainty III. VARIED PERSPECTIVES A. "Control of Dangerous Objects" As a Criterion B. "Practicing a Dangerous Activity" As a Criterion IV. REFLECTIONS A. Can Activities As Such Be Dangerous? B. Common Usage: Impracticable Criterion C. "Objects" Rather Than "Activities "As a More Realistic Criterion D. Necessity of a Dangerousness Chart for Substances and Emissions V. CONCLUSION
In many European codifications, strict liability is restrictively applied to the sources of danger listed by the legislature in statutory instances. (1) The fact that courts are sometimes uncomfortable extending the scope of application of these statutory instances often leads to contradictory solutions. This reluctance goes a long way towards explaining scholars' calls for the introduction of a "general clause" in the area of strict liability to avoid the haphazard way in which strict liability may apply to one case but not to another seemingly similar one. (2) Today, partly as a reaction to this doctrinal call for coherency, various statutory solutions as well as proposals have been suggested to widen the scope of strict liability clauses.
In the current European scholarly debate on drafting satisfactory rules on strict liability, a balance is sought between two opposing extremes: restricting the application of statutory sources of strict liability or using a "general clause" to allow judicial policymaking to shape strict liability. (3) This Article aims to determine a preferred balance, taking into account fundamental prerequisites such as legal certainty, foreseeability (and therefore insurability), and equal treatment of equal sources of danger. In doing so, this Article also addresses the scope of application of such rules. Should the rules be limited to the pursuit of abnormally dangerous activities (as many drafts propose) or to the control of abnormally hazardous objects? Since the concept of "activity" may encompass just about any human or professional undertaking, we argue that adopting dangerous activity as the criterion for the general clause would make its scope unpredictable. This Article argues that a preferred legislative framework would take an "object," rather than "activity," as the central criterion.
First, the Article briefly introduces the strategies that courts apply when confronted with the statutory limits of strict liability and how such courts may or may not allow a broader scope of strict liability. The Article then focuses on recent drafts and proposals for widening the scope of strict liability through general clauses. We examine whether "activity" can be considered a coherent criterion for the application of a "general clause." Furthermore, we draw out the difficulties of evaluating and comparing the dangerousness of activities. Finally, the Article presents and supports an alternative approach. By taking "object" rather than "activity" as the central concept for statutory strict liability, it is possible to avoid the pitfalls of the court-centered piecemeal development of such liability. Moreover, this approach may promote coherent, practicable, and sound strict liability policy-making.
II. CURRENT SOURCES OF STRICT LIABILITY
Many European courts have relaxed the interpretation of the specific statutes without waiting for the legislature's intervention to allow a broader scope of strict liability. (4) The question is whether this judicial intervention solves the problem in such a way that it renders unnecessary a possible legislative implementation of a general clause of strict liability. …