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Principles of european tort law - English
TITLE I. Basic Norm
Chapter 1. Basic Norm
Art. 1:101. Basic norm
(1) A person to whom damage to another is legally attributed is liable to compensate that damage.
TITLE II. General Conditions of Liability
Chapter 2. Damage
Art. 2:101. Recoverable damage
Damage requires material or immaterial harm to a legally protected interest.
Art. 2:102. Protected interests
(1) The scope of protection of an interest depends on its nature; the higher its value, the precision of its definition and its obviousness, the more extensive is its protection.
Art. 2:103. Legitimacy of damage
Losses relating to activities or sources which are regarded as illegitimate cannot be recovered.
Art. 2:104. Preventive expenses
Expenses incurred to prevent threatened damage amount to recoverable damage in so far as reasonably incurred.
Art. 2:105. Proof of damage
Damage must be proved according to normal procedural standards. The court may estimate the extent of damage where proof of the exact amount would be too difficult or too costly.
Chapter 3. Causation
Section 1. Conditio sine qua non and qualifications
Art. 3:101. Conditio sine qua non
An activity or conduct (hereafter: activity) is a cause of the victim’s damage if, in the absence of the activity, the damage would not have occurred.
Art. 3:102. Concurrent causes
In case of multiple activities, where each of them alone would have caused the damage at the same time, each activity is regarded as a cause of the victim’s damage.
Art. 3:103. Alternative causes
(1) In case of multiple activities, where each of them alone would have been sufficient to cause the damage, but it remains uncertain which one in fact caused it, each activity is regarded as a cause to the extent corresponding to the likelihood that it may have caused the victim’s damage.
Art. 3:104. Potential causes
(1) If an activity has definitely and irreversibly led the victim to suffer damage, a subsequent activity which alone would have caused the same damage is to be disregarded.
Art. 3:105. Uncertain partial causation
In the case of multiple activities, when it is certain that none of them has caused the entire damage or any determinable part thereof, those that are likely to have [minimally] contributed to the damage are presumed to have caused equal shares thereof.
Art. 3:106. Uncertain causes within the victim’s sphere
The victim has to bear his loss to the extent corresponding to the likelihood that it may have been caused by an activity, occurrence or other circumstance within his own sphere.
Section 2. Scope of Liability
Art. 3:201. Scope of Liability
Where an activity is a cause within the meaning of Section 1 of this Chapter, whether and to what extent damage may be attributed to a person depends on factors such as
a) the foreseeability of the damage to a reasonable person at the time of the activity, taking into account in particular the closeness in time or space between the damaging activity and its consequence, or the magnitude of the damage in relation to the normal consequences of such an activity;
TITLE III. Bases of Liability
Chapter 4. Liability based on fault
Section 1. Conditions of liability based on fault
Art. 4:101. Fault
A person is liable on the basis of fault for intentional or negligent violation of the required standard of conduct.
Art. 4:102. Required standard of conduct
(1) The required standard of conduct is that of the reasonable person in the circumstances, and depends, in particular, on the nature and value of the protected interest involved, the dangerousness of the activity, the expertise to be expected of a person carrying it on, the foreseeability of the damage, the relationship of proximity or special reliance between those involved, as well as the availability and the costs of precautionary or alternative methods.
Art. 4:103. Duty to protect others from damage
A duty to act positively to protect others from damage may exist if law so provides, or if the actor creates or controls a dangerous situation, or when there is a special relationship between parties or when the seriousness of the harm on the one side and the ease of avoiding the damage on the other side point towards such a duty.
Section 2. Reversal of the burden of proving fault
Art. 4:201. Reversal of the burden of proving fault in general
(1) The burden of proving fault may be reversed in light of the gravity of the danger presented by the activity.
Art. 4:202. Enterprise Liability
(1) A person pursuing a lasting enterprise for economic or professional purposes who uses auxiliaries or technical equipment is liable for any harm caused by a defect of such enterprise or of its output unless he proves that he has conformed to the required standard of conduct.
Chapter 5. Strict liability
Art. 5:101. Abnormally dangerous activities
(1) A person who carries on an abnormally dangerous activity is strictly liable for damage characteristic to the risk presented by the activity and resulting from it.
Art. 5:102. Other strict liabilities
(1) National laws can provide for further categories of strict liability for dangerous activities even if the activity is not abnormally dangerous.
Chapter 6. Liability for others
Art. 6:101. Liability for minors or mentally disabled persons
A person in charge of another who is a minor or subject to mental disability is liable for damage caused by the other unless the person in charge shows that he has conformed to the required standard of conduct in supervision.
Art. 6:102. Liability for auxiliaries
(1) A person is liable for damage caused by his auxiliaries acting within the scope of their functions provided that they violated the required standard of conduct.
TITLE IV. Defences
Chapter 7. Defences in general
Art. 7:101. Defences based on justifications
(1) Liability can be excluded if and to the extent that the actor acted legitimately
Art. 7:102. Defences against strict liability
(1) Strict liability can be excluded or reduced if the injury was caused by an unforeseeable and irresistible
Chapter 8. Contributory conduct or activity
Art. 8:101. Contributory conduct or activity of the victim
(1) Liability can be excluded or reduced to such extent as is considered just having regard to the victim’s contributory fault and to any other matters which would be relevant to establish or reduce liability of the victim if he were the tortfeasor.
TITLE V. Multiple Tortfeasors
Chapter 9. Multiple Tortfeasors
Art 9:101 Solidary and several liability: relation between victim and multiple tortfeasors
(1) Liability is solidary where the whole or a distinct part of the damage suffered by the victim is attributable to two or more persons. Liability is solidary where:
Art 9:102 Relation between persons subject to solidary liability
(1) A person subject to solidary liability may recover a contribution from any other person liable to the victim in respect of the same damage. This right is without prejudice to any contract between them determining the allocation of the loss or to any statutory provision or to any right to recover by reason of subrogation [cessio legis] or on the basis of unjust enrichment.
TITLE VI. Remedies
Chapter 10. Damages
Section 1. Damages in general
Art. 10:101. Nature and purpose of damages
Damages are a money payment to compensate the victim, that is to say, to restore him, so far as money can, to the position he would have been in if the wrong complained of had not been committed. Damages also serve the aim of preventing harm.
Art. 10:102. Lump sum or periodical payments
Damages are awarded in a lump sum or as periodical payments as appropriate with particular regard to the interests of the victim.
Art. 10:103. Benefits gained through the damaging event
When determining the amount of damages benefits which the injured party gains through the damaging event are to be taken into account unless this cannot be reconciled with the purpose of the benefit.
Art. 10:104. Restoration in kind
Instead of damages, restoration in kind can be claimed by the injured party as far as it is possible and not too burdensome to the other party.
Section 2. Pecuniary damage
Art. 10:201. Nature and determination of pecuniary damage
Recoverable pecuniary damage is a diminution of the victim’s patrimony caused by the damaging event. Such damage is generally determined as concretely as possible but it may be determined abstractly when appropriate, for example by reference to a market value.
Art. 10:202. Personal injury and death
(1) In the case of personal injury, which includes injury to bodily health and to mental health amounting to a recognised illness, pecuniary damage includes loss of income, impairment of earning capacity (even if unaccompanied by any loss of income) and reasonable expenses, such as the cost of medical care.
Art. 10:203. Loss, destruction and damage of things
(1) Where a thing is lost, destroyed or damaged, the basic measure of damages is the value of the thing or the diminution in its value and for this purpose it is irrelevant whether the victim intends to replace or repair the thing. However, if the victim has replaced or repaired it (or will do so), he may recover the higher expenditure thereby incurred if it is reasonable to do so.
Section 3. Non-pecuniary damage
Art. 10:301. Non-pecuniary damage
(1) Considering the scope of its protection (Article 2:102), the violation of an interest may justify compensation of non-pecuniary damage. This is the case in particular where the victim has suffered personal injury; or injury to human dignity, liberty, or other personality rights. Non-pecuniary damage can also be the subject of compensation for persons having a close relationship with a victim suffering a fatal or very serious non-fatal injury.
Section 4. Reduction of damages
Art. 10:401. Reduction of damages
In an exceptional case, if in light of the financial situation of the parties full compensation would be an oppressive burden to the defendant, damages may be reduced. In deciding whether to do so, the basis of liability (Article 1:101), the scope of protection of the interest (Article 2:102) and the magnitude of the damage have to be taken into account in particular.