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The Structure of Tort Law
The Structure of Tort Law
History, theory, and doctrine of non-contractual
claims for compensation

N I L S JA N SE N

Translated by
S A N DY ST E E L

1
 3
Great Clarendon Street, Oxford, OX2 6DP,
United Kingdom

Oxford University Press is a department of the University of Oxford.

It furthers the University’s objective of excellence in research, scholarship,
and education by publishing worldwide. Oxford is a registered trade mark of
Oxford University Press in the UK and in certain other countries
© Nils Jansen 2021
© for the English translation, Sandy Steel 2021
The moral rights of the authors have been asserted
First Edition published in 2021
Impression: 1

All rights reserved. No part of this publication may be reproduced, stored in

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above should be sent to the Rights Department, Oxford University Press, at the
address above
You must not circulate this work in any other form
and you must impose this same condition on any acquirer
Public sector information reproduced under Open Government Licence v3.0
(http://​www.nationalarchives.gov.uk/​doc/​open-​government-​licence/​open-​government-​licence.htm)
Published in the United States of America by Oxford University Press
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Links to third party websites are provided by Oxford in good faith and
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 Preface

I have acquired many debts of gratitude in the many years in which this translation
was in gestation. Nils Jansen has been a patient collaborator across these years (at one
point, the Oxford University Press website, somewhat ungenerously if perhaps not en-
tirely without evidential foundation, described the translation as forthcoming in 2999).
I thank Nils for his wise advice, discussions from which I have learned a great deal,
and for his and Andrea Nicolaus Jansen’s kind hospitality in Münster in 2013 when
I was a visiting scholar at the Exzellenzcluster at WWU. Particular thanks are also
due to Kristin Boosfeld, who has constantly supported and improved the project. The
translation would never have been completed without the excellent joint efforts of sev-
eral other members of the Lehrstuhl Jansen, including Celine Babakan, Vincent Eich,
Dominique Ferreira, Arian Hackmann, Simon Kleuters, Henrik Köster, Constantin
Luft, Selin Özgüc, Clara Paul, Sarah Popp, Maurice Martins Santana, Jana Schaumburg,
Christian Schmidt, and Lisa Simonis. Thank you also to Jeffrey Hackney and Tim Koch
for their helpful comments. Finally, I am grateful to Laura Seymour and my mother,
who provided enormous encouragement and support throughout.
 Abbreviations

ABGB Allgemeines Bürgerliches Gesetzbuch (A)

AC Law Reports, Appeal Cases (GB)
AcP Archiv für die civilistische Praxis
AD Appellate Division Reports (SA)
ALR Allgemeines Landrecht für die Preußischen Staaten, cit §, Theil, Titel
Am J Leg Hist The American Journal of Legal History
art articulus
B&C Barnewell and Cresswell’s Reports, KB (GB)
B&S Best & Smith’s Reports, QB (GB)
BAG Bundesarbeitsgericht
Bell J Ec The Bell Journal of Economics
BGB Bürgerliches Gesetzbuch (D)
BGH Bundesgerichtshof
BGHZ Entscheidungen des Bundesgerichtshofs in Zivilsachen (Decisions of the
Federal Court in Civil Matters)
BIDR Bullettino dell’istituto di diritto romano
Bing (NC) Bingham’s New Cases, Common Pleas (GB)
BVerfG Bundesverfassungsgericht (Federal Constitutional Court)
BVerfGE Entscheidungen des Bundesverfassungsgerichts (Decisions of the Federal
Constitutional Court)
BVerwG Bundesverwaltungsgericht
BW Burgerlijk Wetboek (NL)
C Codex Iustinianus
Cal LR California Law Review
Cam LJ Cambridge Law Journal
Can Bar Rev The Canadian Bar Review
Can J Law & Jur Canadian Journal of Law and Jurisprudence
cap caput
Cc Code civil (F); Codice civile (I); Código civil (PRT)
CCC Constitutio Criminalis Carolina
Cels Celsus
Ch Kent LR Chicago Kent Law Review
CLP Current Legal Problems
Col LR Columbia Law Review
Coll Mosaicarum et Romanarum legum collatio
const constitutio
Corp Iur Can C Corpus iuris canonici, Decretum Gratiani, Causa, cit. causa,
quaestio, canon
Corp Iur Can X Corpus iuris canonici, Decretum Gregorii IX, cit. liber, titulus, capitulum
CT Codex Theodosianus
D Digesta
xvi Abbreviations
def definitio
disp disputatio
DM Deutsche Mark
dub dubitatio
Edinb LR The Edinburgh Law Review
EGBGB Einführungsgesetz zum Bürgerlichen Gesetzbuch
Einl Einleitung
ER The English Reports (GB)
ERPL European Review of Private Law
Eur J Law & Ec European Journal of Law and Economics
Exch Law Reports Exchequer (GB)
exerc exercitatio
G Wash LR The George Washington Law Review
Gai Gaius; Gaii Institutiones
GG Grundgesetz (D)
Gl Glossa
GRUR Int Gewerblicher Rechtsschutz und Urheberrecht Internationaler Teil
GS Großer Senat (special panel of judges at the highest courts in Germany to
facilitate uniformity of jurisdiction)
Harvard LR Harvard Law Review
HLC Clark’s Reports, House of Lords
Hofstra LR Hofstra Law Review
HR Hoge Raad (NL)
HRG Handwörterbuch zur Deutschen Rechtsgeschichte
Iav Iavolenus
IECL International Encyclopedia of Comparative Law
Index Quaderni camerti di studi romanistici
Inst Institutiones Iustiniani
Int R Law & Ec International Review of Law and Economics
Iowa LR Iowa Law Review
IP Intellectual Property
Iul Iulianus
IVRA IVAR Rivista internazionale di diritto romano e antico
J Ec Persp Journal for Economic Perspectives
J Lab Ec Journal of Labor Economics
J Law & Ec Journal of Law and Economics
J Pol Ec The Journal of Political Economy
JBl Juristische Blätter
JLSt Journal of Legal Studies
JW Juristische Wochenschrift
JZ Juristenzeitung
KB King’s Bench
KG Kort Geding (NL)
Lab Labeo
Labeo Labeo Rassegna di diritto romano
Law & Soc Inq Law and Social Inquiry
Leg Th Legal Theory
LG Landgericht
 Abbreviations xvii
lib Liber
LM Lindenmaier-​Möhring –​ Kommentierte BGH-​Rechtsprechung
Lofft Capel Lofft, Report of Cases, KB (GB)
LQR The Law Quarterly Review
LR Law Reports (GB)
Marc Marcellus
MDR Monatszeitschrift des deutschen Rechts
Miss LR Missouri Law Review
MLR Modern Law Review
Mod Modestinus
Muc Mucius
NE The Northeastern Reporter (USA)
NedJur Nederlandse jurisprudentie
Ner Neratius
NF Neue Folge
NJW Neue Juristische Wochenschrift
NJW-​RR Neue Juristische Wochenschrift Rechtsprechungs-​Report
Notre Dame LR Notre Dame Law Review
NW The Northwestern Reporter (USA)
NZW Neue Zeitschrift für Verkehrsrecht
OAG Oberappellationsgericht (Court of Appeal)
OG Obergericht (Court of Appeal)
OGH Oberster Gerichthof (A)
OJLSt Oxford Journal of Legal Studies
OLG Oberlandesgericht (Court of Appeal)
OR Obligationenrecht (CH)
Osg Hall LJ Osgoode Hall Law Journal
OTr Entscheidungen des Königlichen Geheimen Ober-​Tribunals (Prussia)
(Decisions of the Royal Supreme Court)
P The Pacific Reporter (USA)
partic particulum
Paul Paulus
Ped Pedius
Peg Pegasus
PflVG Pflichtversicherungsgesetz
Ph R Philosophical Review
Pomp Pomponius
pr principium
Proc Proculus
Prol Prolegomena
PSI Pubblicazioni della Società italiana per la ricerca die papiri greci e latini in
Egitto, Papiri greci e latini
QB Queen’s Bench; Law Reports Queen’s Bench Division (GB)
qu quaestio
RabelsZ Zeitschrift für ausländisches und internationales Privatrecht
Rand J Ec Rand Journal of Economics
RG Reichsgericht
xviii Abbreviations
RGSt Entscheidungen des Reichsgerichts in Strafsachen (Decisions of the
Imperial Court in Criminal Matters)
RGZ Entscheidungen des Reichsgerichts in Zivilsachen (Decisions of the
Imperial Court in Civil Matters)
RIDA Revue Internationale des Droits de l’Antiquité, 3e série
RTD civ Revue trimestrielle de droit civil
RvdW Rechtspraak van de Week (NL)
s sentence
Sab Sabinus
SDHI Studia et documenta historiae et iuris
SeuffArch Seufferts Archiv für die Entscheidungen der obersten deutschen
Staaten (D)
StGB Strafgesetzbuch (D)
StVG Straßenverkehrsgesetz (D)
StVO Straßenverkehrsordnung (D)
Style Style, Modern Reports (GB)
Theor Inqu Theoretical Inquiries in Law
tit titulus
TR Tijdschrift voor Rechtsgeschiedenis
tract tractatus
Trans Am Phil Ass Transactions and Proceedings of the American Philological Association
Tul LR Tulane Law Review
U Ch LR University of Chicago Law Review
U Penns LR University of Pennsylvania Law Review
U Tor LJ University of Toronto Law Journal
UCLA LR UCLA Law Review
Ulp Ulpianus
VersR Zeitschrift Versicherungsrecht
Virg LR Virginia Law Review
WLR The Weekly Law Reports (GB)
WM Wertpapier-​Mitteilungen, Zeitschrift für Wirtschafts-​und Bankrecht
Yale LJ The Yale Law Journal
ZPO Zivilprozessordnung (D)
ZRG Zeitschrift der Savigny-​Stiftung für Rechtsgeschichte (romanistische
Abteilung)
ZRG (germ) Zeitschrift der Savigny-​Stiftung für Rechtsgeschichte (germanistische
Abteilung)
XII T Twelve Tables
2nd, 3rd Second Series, Third Series
 Legislation

Allgemeines Bürgerliches Gesetzbuch (ABGB) (Austria)—Austrian Civil Code

Allgemeines Landrecht für die Preußischen Staaten (ALR)—Prussian Civil Code
Arzneimittelgesetz—Medicinal Products Act
Atomgesetz—Nuclear Power Act
Bauforderungssicherungsgesetz—Building Contract Securities Act
Bundesbeamtengesetz—Federal Civil Service Act
Bundesdatenschutzgesetz—Federal Data Protection Act
Bundes-​Immissionsschutzgesetz—Federal Pollution Control Act
Bürgerliches Gesetzbuch (BGB)—German Civil Code
Burgerlijk Wetboek (BW) (Netherlands)—Dutch Civil Code
Code civil (Cc) (France)—French Civil Code
Codice civile (Cc) (Italy)—Italian Civil Code
Código civil (Cc) (Portugal)—Portuguese Civil Code
Einführungsgesetz zum Bürgerlichen Gesetzbuch (EGBGB)—Introductory Act to the
German Civil Code
Einführungsgesetz zum Reichsstrafgesetzbuch—Introductory Act to Criminal Code of
the Reich
Eisenbahngesetz—Railways Act
Entgeltfortzahlungsgesetz—Continued Salary Payment Act
Gentechnikgesetz—Genetic Engineering Act
Gesetz gegen den unlauteren Wettbewerb—Unfair Competition Act
Gewerbeordnung—Trade Regulations
Grundgesetz (GG)—German Basic Law
Haftpflichtgesetz—Liability Law
Haustürwiderrufsgesetz—Cancellation Rights for Doorstep Sales Act
Insolvenzordnung—Insolvency Ordninance
Luftverkehrsgesetz—Aviation Act
Obligationenrecht (OR) (Switzerland)—Swiss Law of Obligations
Pflichtversicherungsgesetz (PflVG)—Mandatory Insurance Act
Produkthaftungsgesetz—Product Liability Act
Reichsgewerbeordnung—Reich Business Act
Reichshaftpflichtgesetz—Reich Liability Act
Reichsstrafgesetzbuch—Reich Criminal Code
Sozialgesetzbuch X—Social Code, Book 10
Strafgesetzbuch (StGB)—German Criminal Code
Straßenverkehrsgesetz (StVG)—Road Traffic Act
Straßenverkehrsordnung (StVO)—Road Traffic Ordinance
Umwelthaftungsgesetz—Environmental Liability Act
xx Legislation
Urhebergesetz—Copyright Act
Verbraucherkreditgesetz—Consumer Credit Act
Versicherungsvertragsgesetz—Insurance Contracts Act
Wasserhaushaltsgesetz—Water Management Law
Zivilprozessordnung (ZPO)—Civil Procedure Ordinance
 Logical Symbols

¬ not (negation)
^ and (conjunction)
→ if . . . then (conditional)
(x) for all x, (universal quantifier)
O it is required (deontic proscriptor)
F it is prohibited (deontic prohibitor)
P it is permitted (deontic permissive)
C there is the right/​claim that
 Introduction to the English Translation

Every legal system has to make decisions about whether, and under which conditions, the
victims of injuries and accidents are expected to bear their losses themselves, or whether,
and to what extent, they may shift these losses to either a person who caused the acci-
dent or is otherwise responsible for it, or to a collective security system, such as an insur-
ance or a national health system. In most legal systems, such decisions are made on the
basis of a body of non-​contractual rules and principles that give expression to historically
grown conceptions of individual responsibility. These bodies of rules shall be referred to as
tort law (albeit the implicit connection between ‘torts’ and ‘wrongs’ makes this term non-​
ideal). In Germany, the heart of those rules in their entirety (Haftungsrecht) is the law of
delict, that is liability for damage caused by fault. In its long history, the originally Roman
rules on delicts have been complemented with rules on culpa in contrahendo, with diverse
instances of strict liability, such as strict liabilities for risk, sacrifice liability in situations
of necessity (Aufopferungshaftung), product liability including liability for medical drugs,
and with the law of damages which concerns the extent of liability.
In every modern legal system, these rules and principles on tort law are embedded in
larger systems of private and public insurance and other compensation schemes. Although
tort law is typically formulated as if an individual victim would sue an individual tort-
feasor, in reality, it is usually first-​and third-​party insurers disputing or, more often, set-
tling cases with one party or among themselves, often in large bulk agreements. The rules
on tort law cannot be understood and applied appropriately without taking those larger
pictures into consideration. Thus, to present an introductory example, compulsory (third-​
party) insurance schemes were usually introduced in order to make sure that citizens were
compensated if they became victims of accidents. Jurists, of course, have to ‘translate’ such
legislation on insurance law into the operation of their private law rules on tort law, so far as
they are relevant. It is not obvious, however, how this should be done as the duty to insure a
specific risk has nothing to do with fault or wrongfulness in causing damage. Nevertheless,
it would be absurd if tort law could not respond to such changes in its legal environment.

I. Structuring Tort Law

In many legal systems, judges have reacted to such legislation by extending negli-
gence liability; hence, they usually formulated stricter duties of care or supported the
victims of accidents with shifts of the burden of proof. In this respect, developments in
Germany are representative of what can be observed throughout the modern world:1

1 Jansen, ‘Development’, 1–​45.

The Structure of Tort Law. Nils Jansen, Translated by Sandy Steel, Oxford University Press. © Nils Jansen 2021. © for the English translation,
Sandy Steel 2021. DOI: 10.1093/ oso/ 9780198705055.001.0001
xxiv Introduction to the English Translation
in accordance with the twentieth-​century legislators’ intentions, though probably not
with those of the fathers of the German Civil Code (BGB), German judges made sure
that the losses in question ultimately fell on the insurance.
Now, one consequence of such developments was that the meaning of concepts such
as negligence, duty, and fault, has changed. Today, ‘duties’ in the law of delict are often
no longer ‘real’ duties which could be enforced by law; rather they become standards
of care defining the extent of individual responsibility. In Germany such standards
may be described as Obliegenheiten: ‘duties’, which are not obligatory, but rather for-
mulate requirements which their addressees have to fulfil in order to avoid negative
consequences, such as liability. The classical example is an insured party’s obligation
of information to the insurer: the insurer may not be able to force the insured party
to reveal the information in question, but the party will lose claims against the in-
surer if it did not comply with the obligation in question. Liability for negligence can
often be described along similar lines. Unfortunately, the English legal language does
not possess a specific term for such obligations. In any event, such Obliegenheiten of
care often do not restrict the individual liberty of their addressees any more than a de-
nial of liability would restrict the liberty of typical victims: tortfeasors have to bear the
loss, or they must buy an insurance or refrain from the dangerous activity, just as typ-
ical victims would either have to buy first-​party insurance or better avoid situations in
which they would be exposed to the risk in question.
In view of such observations (§ 1), the purpose of the book is first to analyse the
‘structure’ of tort law, that is its normative, conceptual, and doctrinal anatomy (see § 2).
In particular, I am interested in the interplay between considerations of corrective and
distributive justice. Here, corrective-​justice theories, such as those by Epstein, Weinrib,
and Ripstein, compete with distributive approaches that purport to take seriously the
distributive effects of tort law.2 None of those approaches, however, so I will argue,
provides a fair reconstruction of what modern tort law is really about: on the one hand,
the basic structure of tort law is determined by a framework of corrective justice; one
cannot deny this,3 and one should not easily dismiss this basic structure and replace,
rather than complement, tort law with collective insurance schemes. Tort law is much
more than an interchangeable cog in the state’s security machine, or a device to prevent
damaging activities. It gives expression to societal conceptions of individual responsi-
bility; and the idea of individual responsibility is a highly important social resource in
any liberal society. It makes a huge difference whether an insurer has to pay because its
client is responsible, and should feel so, for damage caused, or whether compensation
schemes are paying directly for some damage because it is regarded as an adversity of
life. On the other hand, no fair picture of tort law can ignore that what legislators and

2 The most important of such theories is still Calabresi, Costs of Accidents.

3 Arnold seems to deny the very possibility of a formal, categorical distinction of corrective and distributive
justice: Vertrag und Verteilung, 50 ff. But the fact that all legal concepts, including those, of course, of distributive
and corrective justice, are ultimately grounded on basic normative assumptions does not entail the impossibility
of categorical distinctions. Corrective and distributive justice are different things, independently of the criteria for
the relevant distributions or corrections.
 Introduction to the English Translation xxv
judges are concerned about when further developing tort law mainly concerns issues of
distributive justice. During the twentieth century, they were dealing for example with
the situations of workers at their workplaces, with environmental damage, with the
risks of dangerous enterprises, of products and modern technologies, and with the re-
sponsibility of state institutions for damage caused by their officials when dealing with
citizens.
In what follows, I argue that tort law is about distributive decisions relating to indi-
vidual responsibility for damage; it thus concerns distributive decisions embedded
in a framework of corrective justice. Tort lawyers would misunderstand, and indeed
misuse, tort law, if they employed it to address problems of an unfair distribution of
wealth or risks of accidents tout court. Yet, they should likewise be aware that their task
is not simply to correct wrongs or to compensate losses. Rather, their task is correction-​
related distributions between the victims of injuries or accidents and those who may be
responsible for those misfortunes. Tort law is structured by a basic framework of cor-
rective justice; yet, to apply this framework, a number of distributive decisions are nec-
essary: decisions have to be made about which interests to protect (decisions relating
to the scope of liability) and about the extent of responsibility. Indeed, responsibility
may be limited to harm caused intentionally or recklessly, it may be strict, extending
also to the consequences of perfectly careful behaviour, and negligence includes a great
number of different grades of carelessness.
It is important to understand that the basic claims I am making in this part of the
book are descriptive as far as the substance of tort law is concerned: I present what
I regard as a fair picture of current tort law and I analyse its normative structure. In
particular, I do not intend to make any normative statements that might change the law
as it stands: I will not argue that there should be more or less liability,4 or that strict li-
ability would be superior to liability for fault, or vice versa. What I take as my object of
analysis is the law as it stands and as it is actually applied by the courts, rather than the
conceptual inheritance of nineteenth-​century jurisprudence, as it had been restated in
1900 by the legislator of the German civil code. Thus, the aim of the book is not to give
the best interpretation of the law as it was laid down in 1896 in §§ 823–​853 BGB and in
accompanying statutes on more or less strict forms of strict liability. In view of the cur-
rent state of the law, I do not think that such an approach would be particularly helpful.
During the twentieth century, German tort law, like most other European tort laws,
went through fundamental transformations. Today, the code’s provisions have been
fleshed out, complemented with, and even superseded by, thick layers of judge-​made
law, which quite clearly have fundamentally changed the significance and meaning
of the original provisions. Ignoring the relevant judgments and statements by judges
would mean drawing an inappropriate picture of the present law.
Similarly, I do not believe that an appropriate idea of the structure of tort law could
be derived from conceptual analysis of terms such as fault, wrong, corrective justice,

4 In particular, I am not in favour of expanding liability as some critics fear; see Münchener Kommentar8/​

Wagner, § 823, [12].

xxvi Introduction to the English Translation
or equality. Those concepts have often changed their meaning in the course of his-
tory and they continue to be open to interpretation. They are too weak a ground to
erect a doctrinal building on them. Thus, while fault liability for wrongs, on the one
hand, and strict liability for risks and sacrifice liability, on the other, may be clearly
distinguished in the conceptual realms of legal theory and doctrine,5 comparative and
doctrinal lawyers have often observed the sliding scale between, and functional inter-
changeability of, those different types of liability.6 More importantly, strict liabilities
as well as liability for fault are likewise legal expressions of individual responsibility.7
Hence, they follow a basic logic of corrective justice; at the same time similar distribu-
tive arguments apply with regard to fault liability and strict liability for risks and to sac-
rifice liability. As Jane Stapleton has observed many years ago regarding English law,8
and as has been confirmed by German judges,9 courts deciding on issues of negligence
often consider arguments such as the better insurability of the relevant risk for one of
either the claimant or defendant, or their weak or strong position, such as in particular
their financial or social situation. Rather than simply asking whether the defendant
acted in accordance with the relevant safety standards, they assign risks of accidents.
The most basic claim I am making in the book is that an appropriate theory of tort law
should be able to explain why the same arguments apply as far as fault liability and strict
liabilities are concerned, and why fault liability and strict liability are not fundamen-
tally different things. I therefore reject the traditional approach of German doctrine re-​
constructing tort law on the basis of a ‘twin-​’ or ‘pluri-​tracked’ model. According to this
doctrine, tort law consists of two, viz many, independent groups of causes of actions,
each following a different normative logic. This doctrine regards liability for fault as an
expression of corrective justice and strict liability as an expression of distributive prin-
ciples. While German scholars usually have taken this doctrine as a starting point for
further argument, I regard it as a basic problem. Tort law, so I will argue, is one coherent
body of rules that in their entirety give expression to individual responsibility.10
It may be argued, of course, that my approach does not perfectly fit with the orig-
inal conception of the BGB.11 For reasons to be explained below (Section II), the fa-
thers of the BGB wanted to keep strict liabilities outside the BGB. For them, strict

5 Canaris, ‘Grundstrukturen’, 577 ff.

6 See, as far as strict liability for risks is concerned, Larenz/​Canaris, Schuldrecht II/​2, 610 f (§ 84 I.3.b). The
comparative perspective provides a particular clear picture; see Zweigert/​Kötz, Comparative Law, 649 ff; von Bar,
Common European Law of Torts II, [306], [311], [316 ff]; Werro, Palmer, and Hahn, ‘Cases and Results’, 406 ff, 409 ff,
446 ff; Koziol, Grundfragen des Schadenersatzrechts, 2010, [1/​20 f]. For a general picture, see Jansen, ‘Principles’,
741 ff; below, 408 ff.
7 Canaris, ‘Grundstrukturen’, 580; Jansen, ‘Legal Responsibility’, 221–​252. The issue is disputed as far as sacrifice

liability in favour of a third party is concerned, where one person A interferes with the property or else right of B in
order to prevent larger injury or damage to C. Here, some authors argue that liability falls not upon A, who caused
the damage, but rather upon C, who benefits from B’s loss. But this does not accord with the provision’s intention;
see Münchener Kommentar8/​Brückner, § 904, [16]–​[19].
8 Stapleton, ‘Duty of Care Factors’, 93 f and passim.
9 Hauß, ‘Entwicklungslinien’, 151–​ 167; Steffen, ‘Verkehrspflichten’, 410; id, Karlsruher Forum 1985, 33; id,
‘Haftung im Wandel’, 13–​37; further id, Reichsgerichtsräte-​Kommentar/​Steffen, § 823, [114 ff].
10 See also Historisch-​kritischer Kommentar/​Schermaier, before § 276, [17 f]; Historisch-​kritischer Kommentar/​

Schiemann, §§ 823–​830, 840, 842–​853, [3]‌–[​ 6], [155], and passim.

11 See, in particular, Canaris, ‘Grundstrukturen’, 577 ff; Münchener Kommentar8/​Wagner, § 823, [12].
 Introduction to the English Translation xxvii
liabilities were political law and hence should be kept separate from the—​apolitically
conceived—​codification. Yet, time has long passed by such considerations. It would not
be particularly helpful still today to criticize decades of case law of abusing the BGB’s
provisions on delict,12 and even scholars disagreeing with my approach admit that it
offers a fair reconstruction of such case law.13 Indeed, while it is true that considerations
of risk distribution were not present when the law of delict was codified in 1896, such
considerations have played an increasingly significant role since third-​party insur-
ance has become available and was made obligatory as early as in 1922 for aircraft and
in 1939 for cars. Clearly, the purpose of such legislation was to protect the victims of
accidents; the same was true for the new action directe of victims against their injurer’s
insurance.14 The twentieth century’s case law may be difficult to reconcile with the orig-
inal conception of the BGB’s law of delict; yet, with its transformations of the law of de-
lict, it was clearly in conformity with the intentions of subsequent legislation on issues
such as insurance, social security systems, and risk liability.

II. Transformations of Tort Law

The book thus focuses on what I perceive as important tensions between the wording of
the BGB’s provisions and current conceptions of non-​contractual responsibility under-
lying the actual practice of courts. Again, with such tensions between the conceptual in-
heritance of tort law and its modern functions, German law is representative for many
other legal systems. Nevertheless, it is one thing to assert such tensions, and quite another
one to explain them, that is to show that the BGB’s provisions on delicts were drafted with
inappropriate conceptual and doctrinal material. Here, the book’s main historical thesis is
that the concepts and doctrines underlying modern tort law were designed for purposes
quite different from those of modern laws.
This explanation starts from what is generally regarded as the origin of modern
European tort law: the Roman lex Aquilia. When this plebiscite was held at the end of
the third century bc, however, the law of delict was quite a different thing than modern
tort laws. In particular, it was not primarily about compensation, but rather about ret-
ribution for wrongs suffered from the defendant’s hands. Although the sanction of
the actio legis Aquiliae was measured on the damage suffered by the claimant, those
damages were not meant to compensate the victim, but rather to sanction the wrong
done by the defendant. The Aquilian poena—​originally a ransom paid in a settlement
concerning the victim’s right of legal revenge—​was a means of economic retaliation:15
the defendant should suffer economically to the same extent to which she had made
the claimant suffer. Still for Cicero, only revenge, rather than financial interests, was

12 Canaris, ‘Grundstrukturen’, 579.

13 Münchener Kommentar8/​Wagner, § 823, [12].
14 Cf Historisch-​kritischer Kommentar/​Schiemann, §§ 823–​830, 840, 842–​853, [5 f].
15 Cf Historisch-​kritischer Kommentar/​Schiemann, §§ 823–​830, 840, 842–​853, [31], [39 f].
xxviii Introduction to the English Translation
a legitimate motive for bringing an action.16 This conception of liability explains why
the defendant’s heirs were not liable under the action,17 why joint tortfeasors were all
liable for the whole damage,18 or why the owner of a slave who had been killed by the
defendant had to decide whether she wanted to claim Aquilian damages or start crim-
inal proceedings.19 The Aquilian concepts of wrongfulness and fault were perfectly
designed for such purposes of legal retaliation. Punitive sanctions are appropriate only
where the defendant culpably commits a wrong.
Compensation is not a modern invention. In Rome, of course, as in modern times,
victims of accidents were not only concerned about retaliation, but also about eco-
nomic compensation. The Roman jurists therefore began to consider such interests
when they further developed the actio legis Aquiliae and thus initiated fundamental
transformations of delictual liability. Thus, the action’s sanction was measured on
the claimant’s loss and could easily be transformed into compensation;20 likewise the
concept of culpa left ample room for interpretation already in Roman times. Similarly,
in early modern times, learned jurists in all Europe made the lex Aquilia the basis of
a general clause of non-​contractual liability, as it was later codified in Art 1382 Code
civil (today Art 1240).21 Indeed, during the eighteenth century, the action seemed
to have fully lost its punitive nature. It ensured a comprehensive protection of the
claimant’s interests and at the same time became the basis for a strict liability for risks
avant la lettre.22 Jurists used the Roman concept of liability for culpa levissima23—​or
‘smallest fault or neglect’ viz ‘slightest fault’ in Scotland24—​to construct far-​reaching
principles of strict liability for ‘negligence without fault’.25 Such culpa levissima had
nothing to do with misconduct; indeed, a highly influential doctrine employed the
idea of a quasi contract to explain such liability. Sometimes, pursuing a dangerous
action was only allowed, so the argument went, if one tacitly promised making good
all resulting damage, even if caused without fault. Thus, to pursue a dangerous ac-
tion without being prepared to do so amounted to culpable unlawfulness.26 Other
jurists illustrated culpa levissima with examples that made quite sure that what they
had in mind was not genuine standards of conduct.27 All those jurists knew that the

16 For a detailed analysis, see Kunkel, Entwicklung des römischen Kriminalverfahrens, 124 ff.
17 Gaius, Institutiones IV, 112 (= Inst 4,12,1); Inst 4,3,9; Ulp D 9,2,23,8.
18 Ulp D 9,2,11,2, referring to Julian.
19 Gaius, Institutiones III, 213.
20 The legal nature of the actio legis Aquiliae has remained a matter of debate until the present day; see Sirks,

‘Actio damni iniuriae legis Aquiliae’, 303–​353. However, Sirks does not reflect the possibility of a functional shift;
neither does he consider the possibility of shifts in the meanings of the action’s basic concepts.
21 This development has often been described and been interpreted in quite different ways; see below, 206 ff and

219 ff; Jansen, ‘Development’, 5–​7.

22 Below, 219 ff; Ogorek, Gefährdungshaftung, 37.
23 Ulp D 9,2,44 pr: ‘In lege Aquilia et levissima culpa venit’.
24 MacQueen/​Sellar, ‘Negligence’, 524 ff.
25 Ehrenzweig, Negligence, 1951.
26 de Molina, De iustitia, tract II, disp 698, n 3: liability ‘ratione pacti, seu quasi pacti’. This argument was received

by leading commentators, such as Brunnemann, Commentarius in Pandectas, ad D 9,2,44, n 1, 5; Struve, Syntagma

Jurisprudentiae Secundum ordinem Pandectarum, ad D 9,2, exerc XIV, § 20; Lauterbach, Collegium theoretico-​
practicum, lib IX, tit II, § 9.
27 Höpfner, Theoretisch-​practischer Commentar, §§ 757 f; Heineccius, Academische Reden, §§ 786 f; id,

Recitationes, §§ 786 f; Gundling, Pandecten, lib IX, tit II, § 2; Bauriedel, Theoretisch-​praktischer Commentar, § 322.
 Introduction to the English Translation xxix
inherited concepts of the lex Aquilia did not fit well with the purposes of their actio
de damno dato.28 Christian Thomasius therefore even suggested tearing the ‘Aquilian
mask’ off this action.29
The BGB, however, is a restatement of nineteenth-​century doctrine, and around 1800,
the winds had changed again.30 Indeed, legislators and scholars significantly restricted
tort law claims leaving the victims of accidents with increasingly poor protection. Those
new winds could be felt everywhere in Europe outside the realm of the Code civil;31 yet, in
the German-​speaking world, they blew particularly bitterly.32 The Prussian Allgemeines
Landrecht (ALR) and likewise the Austrian Allgemeines Bürgerliches Gesetzbuch (ABGB)
were telling examples of the new approach; here even the ‘presumption’ was laid down in
§ 1296 that ‘damage was caused without another person’s fault’.33 At the same time, aca-
demic doctrine focused again on the Roman sources;34 indeed, although no court would
apply the penal elements of Roman delicts, leading authors again presented those elements
as good law.35 It was a consequence of this approach that the principle of fault became an
‘axiom’,36 which, so it seemed, obviously excluded liability for negligence without fault or
culpa levissima.37
Now those doctrines could draw on earlier natural law theories, in particular on those
of Samuel Pufendorf and Christian Wolff. In those theories, delictual liability had been
a sanction necessary to prevent violations of private law duties of conduct.38 During
the twentieth century, this model of delictual responsibility was usually explained with
ideas of political and economic liberalism.39 Indeed, contemporary observers had un-
derstood the changes of legislation as politically motivated restrictions of elder law40
meant to support the equally dynamic and dangerous industries.41 Nevertheless, one
should not too quickly identify the fault principle with early modern liberalism. Writers
such as Immanuel Kant in particular had justified delictual liability as an obligatio ex

28 The point was made eg by Hugo, Lehrbuch, 282 ff.

29 Thomasius, Larva legis Aquiliae; see below, 255 f.
30 For a slightly different picture Bürge, ‘Gefährdungshaftung’, 59 ff, 75 ff. According to Bürge, the change in
approach happened during the 1860s, in particular with Jhering, Schuldmoment. But this picture probably
underestimates the importance of authors other than Kant and Savigny.
31 Here, the concept of fault in Art 1382 Code civil continued to extend to culpa levissima; see Rotondi, ‘Lex

Aquilia’, 549 ff; Hoffmann, Abstufung der Fahrlässigkeit; Halpérin, ‘French doctrinal writing’, 75 ff. The translation
of Art 1382 Code civil into the German Badisches Landrecht was therefore formulated without a requirement of
fault, because it was meant to apply broadly; see Brauer, Code Napoleon V, 372 f.
32 Jansen, ‘Development’, 8–​15.
33 See Hausmaninger, ‘Roman Tort Law’, 126–​128, 130.
34 Ernst, ‘Negligence’, 343 ff; more generally Zimmermann, Roman Law, 11 ff.
35 Thibaut, Pandekten-​Recht I, §§ 66–​68; Puchta, Pandekten, §§ 230, 261; Windscheid, Pandektenrecht II, § 326.
36 See, quite early, Pufendorf, De iure naturae et gentium, lib I, cap V, § 5: ‘axioma in moralibus’; Thibaut,

Pandekten-​Recht I, § 250; Puchta, Pandekten, §§ 264–​267; Jhering, Schuldmoment, 6, 40, and passim; Motive,
Mugdan II, 15: ‘höheres juristisches Axiom’.
37 Thibaut, Pandekten-​Recht I, § 253; Puchta, Pandekten, § 266. The leading authority was Hasse, Culpa,

65 ff, 90 ff.
38 Pufendorf, De iure naturae et gentium, I, III; id, De officio hominis, lib I, cap VI; Wolff, Institutiones iuris na-

turae, §§ 87, 88; see below, 251 ff and 261 ff.

39 Esser, Gefährdungshaftung, 54 ff; Kötz, ‘Besondere Gefahr’, 1 ff; Brüggemeier, ‘Schadensverteilung’, 393 ff; see

also Dilcher, ‘Beitrag der Rechtsgeschichte’, 263 f, 274; Katzenmeier, Arzthaftung, 2002, 154–​156 (for the BGB).
40 Ludwig, Schadens-​Ersatz I, 15 f; see also von Wächter, Handbuch II, 783 ff.
41 Von Zeiller, Commentar, § 1295, fn 5. Similarly Zeiller’s statements in the hearings for the codification; see

Hausmaninger, ‘Roman Tort Law’, 126 f. See, for all, Benöhr, ‘Verschuldensprinzip’, 11–​15.
xxx Introduction to the English Translation
dominio arising from the violation of the claimant’s right;42 hence, Kant and contempo-
rary natural lawyers argued that liability arising from an infringement of a right should
normally be strict.43 Also the Historical School was not as much politically opposed to
strict liability as twentieth-​century jurists believed. To the contrary, Friedrich Carl von
Savigny was the ‘father’ of the modern German concept of strict liability for risks (§ 25
of the Prussian statute on railways, 1838)—​acting, however, not in his role as a scholar,
but rather as a Staatsminister (secretary of the state).44
All in all, the restrictive approach of nineteenth-​century scholarship was not prima-
rily politically motivated. Rather, the decisive point was the scholars’ vision of a private
law that should be conceived in juristic, that is in a-​political, terms. Hence the attrac-
tion of the natural law idea of delicts as a laesio viz injury. The proposition that whoever
had unlawfully and culpably violated his neighbour’s right seemed evident; yet beyond
this proposition, the dangerous fields of political controversy and normative insecurity
opened up. Moreover, from the Historical School’s perspective, the natural law model
of the law of delict was plausible, because it fitted much better with the Roman sources
than the eighteenth-​century pragmatism. Scholars apparently did not ask whether the
model was ultimately convincing as far as legal policy was concerned. Rather, they saw
their task to further develop the Roman natural law concept of iniuria into a doctrinal
category.
It may be doubted whether this model was really in conformity with the actual law
at the end of the nineteenth century. In any event, in the 1870s, the fault principle again
lost its axiomatic status. Indeed, the vivid debate on the normative foundations of tort
law at the turn of the century clearly shows that this principle was rather regarded as a
problem and that an appropriate new legal policy was to be found.45 Also the courts had
long reacted to the presence of asymmetrical risks in social life introducing increas-
ingly far-​reaching duties of care (Verkehrspflichten).46 Nevertheless, the codification
was drafted in the spirit of the natural law model of delict, and it was formulated in the
language of pandectistic doctrines of unlawfulness.47 Quite early, it had been decided
that strict liabilities for risk should not be included into the codification but rather be
provided for by special legislation,48 and this has remained the state of law until the

42 Wolff, Ius naturae, §§ 578–​580; id, Institutiones iuris naturae, §§ 269 f. In this point, Wolff ’s theory was not

very clear, however. It seems that the protected property rights were only protected with duties of non-​interference
(neminem laedere); violations of those duties were then sanctioned with second-​order duties to pay compensation.
At the same time moral judgements are present everywhere in his argument. Hence, liability sometimes seems to
be tied to fault (damnum dolo vel culpa datum: Ius naturae, § 580; Institutiones iuris naturae, § 270), while in the
German translation of the book (Grundsätze des Natur-​und Völckerrechts), he seems to speak about strict liability;
see more detailed Gisawi, Totalreparation, 71 ff, and in particular 81–​84.
43 Kant, Metaphysics of Morals, 31; similarly other Kantian authors such as Hepp or von Zeiller; see below,

262, at fn 555; Bürge, ‘Gefährdungshaftung’, 61 ff.

44 Baums, ‘Einführung der Gefährdungshaftung’, 277 ff; Bürge, ‘Gefährdungshaftung’, 59 f.
45 Below, 280 ff.
46 Kleindiek, Deliktshaftung, 41–​ 81; Bilstein, Schadensersatzrecht der Lex Aquilia, 25 ff, 39 ff; Seiler,
‘Schadensersatzrecht’, 255 f; Zimmermann/​ Verse, ‘Deliktsrecht’, 333 f; Historisch-​kritischer Kommentar/​
Schiemann, §§ 823–​830, 840, 842–​853, [96 f].
47 Historisch-​kritischer Kommentar/​Schiemann, §§ 823–​830, 840, 842–​853, [16]–​[30].
48 See, critically Kötz, ‘Gefährdungshaftung’, 1792 ff. For the political debates preceding and during the drafting

process, see Benöhr, ‘Verschuldensprinzip’, 10–​31.

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