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This chapter assesses the role for environmental liability in the context of the GMOs, with emphasis on the provisions of the Community Environmental Liability Directive. It commences with discussion of the role of liability regimes more generally (adopting Coasean analysis) and compares and contrasts the Environmental Liability Directive with the Lugano Convention. The application of the Environmental Liability Directive is then considered in detail, with particular attention devoted to: the definition of environmental damage, the basis of liability (whether strict or grounded upon fault), the use of the administrative liability model, and risk allocation and insurance. The chapter concludes that the Community regime has serious limitations. Not least, its territorial application is largely restricted to the Natura 2000 network of protected wildlife sites, where GM crop cultivation is in practice unlikely to occur.

This chapter shows that fault liability based in the injurer's negligence is not ordinarily defeasible by an excuse. In that sense, both fault and strict liability in torts are forms of strict liability. Strict liability in torts differs from fault liability in that an injurer can defeat liability neither by excuse nor justification. Fault liability is really the rule that victims are strictly liable for their losses unless the injurer is at fault. Strict (injurer) liability is really the rule that injurers are strictly liable for the losses their conduct occasions unless the victim is at fault. Thus, fault and strict liability are mirror-images of one another.

This chapter explores the issue of fault in defamation law. Part B argues that even before defences such as that of responsible publication developed at common law, the question of whether the defendant acted with fault shaped, and continues to govern, key areas of defamation law. Part C discusses the current understanding of responsible publication in English, Australian, and South African law, and of actual malice in US law. In Part D, it is submitted that constitutionalizing the common law of defamation requires that, in cases of public speech concerning false statements of fact, liability should be based on negligence; this effects a more appropriate balance between freedom of expression and reputation than the actual malice standard. Part E shifts the focus to the liability of secondary publishers such as libraries, vendors, and internet service providers (ISPs). It argues that the current test of negligence that applies in these contexts is not adequate to balance freedom of speech on matters of public interest and reputation. Part F concludes the discussion.

Chapter 11 argues that all liability rules have an element of strict liability at their core. If this argument is correct, there may be no defense of the fault principle that is not also a defense of strict liability. If strict liability is not a matter of morality, then neither is fault liability. If the only defense of strict liability is an economic one, then the only defense of fault liability is an economic one as well. This chapter summarizes aspects of the economic analysis of tort liability. It argues that only an account of tort liability rooted in considerations of economic efficiency can ground both fault and strict liability.

This chapter focuses on no-fault liability — damages liability of public authorities when the impugned actions are not unlawful in a public law sense. Lawfully caused loss is more applicable in French academic and case law because French administrative law covers a more general scope of liability than the strict liability of the English law, including disparate areas of public sector activity, even though it can be compared to individual torts in English law. However, no-fault liability in French administrative law is pervaded by confusion as its supporting principles are still doubtful. Introduction of a broad principle of liability for lawfully caused loss based upon risk theory or on principles of equality has been a debate in common law systems.

This chapter deals with strict liability, a legal doctrine that makes a person responsible for the damage and loss caused by his acts and omissions regardless of culpability. The first section examines the liability for damage done by animals. The second section looks at vicarious liability, a form of liability that arises for the responsibility of eth superior for the acts of their subordinate. The third section discusses the fate of the Roman quasi-delicts, and delictual and quasi-delictual liability. The fourth section cites new instances of no-fault liability in the legislation of the 19th century, strict liability in disguise, and the 20th-century ad hoc legislation. The fifth section investigates strict liability in English law. The last section explores the origin and application of Article 1384 Code Civil.

One of the remarkable achievements of the Roman jurisprudence was the introduction and development of the notion of culpability or fault. Within the context of classical law, culpa had an important role in the determination of the liability of a person in a situation where there was a breach of contract or when a person committed a wrongful act. At the same time however, there were situations where liability did not depend on fault. Recognizing the concept of an implied guarantee, Roman lawyers developed a liability for any loss not attributable to vis maior. And outside the area of contract law, they made an entire branch of their scheme of obligations in order to accommodate instances of no-fault liability where a person was held responsible not for his failure to display the diligence of bonus paterfamilias but because he was in control of a potential source of danger to other people’s lives, health, and property. This chapter discusses strict liability, a liability that is not dependent on the need to prove culpability or negligence. It traces the history of the acceptance of the Scots law of the notion of strict liability through several discourses that chronicles the development of strict liability within the literature of other countries and Scotland and the practice of strict liability in other countries and within Scotland. The first section of the chapter discusses liability for animals. The next section tackles quasi-delictual liability and the development of strict liability within the laws of Scotland.

This concluding chapter brings together the different threads of the book, recapitulating how Roman law upheld a strong division between fault-based and no-fault liability; how this division was misunderstood by modern French law, causing it severe taxonomical difficulties in the process; and how English law could derive from the civilian experience a partial remedy to the problems currently posed by the existence in its fold of intersecting wrongs, if it decided to switch throughout to a structure based on the degree of fault required in its various liability-creating events.

This chapter looks at the possibilities and impossibilities of an ius commune, a common European law, particularly in the area of tort law. There has been strong support for discussing the harmonisation of national private laws in Europe, including the national tort laws. The chapter discusses the thresholds for harmonising the national laws, for example the fact that they hold different approaches to tort law. In France, the main goal is compensation of the victim and distributive justice (featured by the major general strict liability rule for things), whereas in England tort law is mainly about regulating conduct and corrective justice (embodied in the tort of negligence). In Germany, the approach focuses formally on regulating conduct but this happens in a strict way which means that, in fact, distributive justice is the leading principle. The chapter looks at the rules on fault liability and stricter liability as well as common law and codified law.

This chapter explores the two aspects of fault liability: intention and negligence, focusing on what these qualifications of personal conduct mean and which role they play in tort law in Europe. Sometimes, particularly in English law, someone can only be liable if he acted intentionally. In most situations, however, liability requires that someone has acted negligently and this is where the gravity of the chapter lies. Courts establish negligence by balancing the defendant's freedom to act and the claimant’s right to be protected against harm. This balancing technique, which results in so-called unwritten rules, is extensively illustrated. Intention in the legal systems of France, Germany, and England is discussed, along with the reasonable person balancing risk and care, magnitude of the risk, precautionary measures, and subjective and objective tests of negligence.

This chapter analyses the concept of strict liability in Europe. It shows that the difference between fault liability and strict liability is a gradual rather than a principle one. When finding rules, courts and legislators in all jurisdictions use different elements from both categories to achieve the best mix. However, what is considered to be the best mix differs throughout the legal systems. France prefers it with many elements of strict liability whereas England prefers it with a huge amount of negligence elements. Three variations on strict liability are considered: liability with an extra debtor, liability for a defective object, and liability with a limited defence.

In Germany, tort law is characterised by its systematic approach and its many subtle distinctions. Probably the most characteristic feature of German tort law is judge-made in order to fill lacunae in the Civil Code of 1900. In the early 20th century, the Reichsgericht created safety duties based on negligence, and generally they require a very high level of care. The proper place of these safety duties in the legal system is strongly debated in the legal literature, in which systematic aspects are generally considered to be of great importance even if their practical impact is not always clear. This chapter looks at the German Civil Code provisions on fault liability, judge-made rights such as right to business and general personality right, and rules of stricter liability including liability for things and liability for persons.

This chapter analyzes the concept of strict liability. It shows that the difference between fault and strict liability is a gradual one rather than one of principle. In fact, most liability rules are a combination of fault and strict elements. When finding rules, courts and legislators in all jurisdictions use different elements from both categories to achieve what they consider to be the best mix to come to a fair decision.

This chapter discusses the requirements of intention and negligence. Liability can exist for both intentional and negligent conduct. These are the two bases for fault liability, which is usually opposed to strict liability. The chapter is organized as follows. Section B considers the liability for intentional conduct. It analyzes the role that liability plays for intentionally inflicted harm in France, Germany, and England. Sections C and D examine the key role of negligence in the various jurisdictions in establishing liability. The focus is on the negligent conduct (balancing the risk and the precautionary measures), and then on the negligent person (assessing the required knowledge and ability).

In France, tort law is characterised by its broad general principles and its general lack of detail. The rule of strict liability has been developed by the Cour de cassation, which also developed a general strict liability rule for damage caused by other people. This rule supplements the more specific strict liability rules for parents (for damage caused by their children) and for employers (for damage caused by their employees). Hence, in France, in cases of personal injury and property loss, strict liability is the rule and fault liability the exception. This chapter presents general observations on France's fault liability (including abuse of rights), general rule of strict liability for things, specific rules of strict liability for things, general rule of strict liability for persons, and specific rules of strict liability for persons.

This chapter analyzes French tort law, which is characterized by its broad general principles. Only a few rules govern most of the law of extra-contractual liability and these are laid down in the Napoleonic Code civil (CC) of 1804, which is still in force. The main fault liability rule can be found in article 1382 CC (liability for one's own faute), but in cases of personal injury and property damage the strict liability rule of article 1384 al. 1 CC is much more important. This rule is developed by the Cour de cassation and establishes a strict liability for damage, caused by a thing (chose). The Cour de cassation also developed a general strict liability rule for damage caused by other persons, which supplements the more specific strict liability rules for parents (for damage caused by their children) and for employers (for damage caused by their employees). Hence, in France, in cases of personal injury and property loss, strict liability is the rule and fault liability the exception.

This chapter analyzes German tort law, which is characterized by its systematic approach and many subtle distinctions. The most notable feature of German tort law may be the judge-made rules needed to fill the lacunae in the Bürgerliches Gesetzbuch (BGB, Civil Code) of 1900, a striking example of which is the creation of the so-called Verkehrspfl ichten in the early twentieth century. These are safety duties based on negligence, and generally require a very high level of care. The proper place for these Verkehrspflichten in the legal system is strongly debated in the legal literature, in which systematic aspects are generally considered to be of great importance even if their practical impact is not always clear.

This chapter begins by defining the polluter-pays principle as an economic rule of cost allocation whose source lies precisely in the theory of externalities, requiring the polluter to take responsibility for the external costs arising from their pollution. It then discusses two ways to ensure that prices reflect the true cost of production and consumption. It traces the evolution of the principle in international organizations such as the Organisation for Economic Co-operation and Development (OECD) and the European Union (EU) as well as in domestic law. It illustrates its various functions (redistributive, preventive, curative) that are at times complementary and at other times mutually exclusive. It also discusses that this principle exercises a significant influence on the evolution of national law and clarifies the functions of the principle, particularly from the perspective of taxation, civil liability, and State aids. It begs a number of questions such as: who is the polluter? who should pay pollution charges? how can the charge be made proportionate to the severity of pollution? how can the liable party be identified?