The Basic Questions of Tort Law from a Comparative Perspective
The piecemeal enactment of rules by the European Union (EU) in isolated areas shows that up until now insufficient attention has been focused on the basic questions of tort law, leading to significant inconsistencies in those rules and to inadequate regulation. Through the transposition of laws, the shortcomings at EU level find their way into national legal systems and add to similar deficiencies that already plague those systems. Although such basic questions have undoubtedly been visited the results are, on the one hand, anchored in the distant past and on the other hand the reasearch was not conducted on a broad comparative basis. Further, the role of tort law in the context of the overall legal system, in particular, in relation to unjust enrichment, social security and criminal law, among others, has not been examined in depth nor have new scholarly tendencies – eg economic analysis – been included in discussions. In drafts for a new European tort law – most notably, the Principles of European Tort Law and the Draft Common Frame of Reference – basic questions such as those on the functions and aims of tort law were touched upon, however, the mandate of such works did not require the detailed analysis of the topics proposed here; rather, the drafters sought to establish broadly acceptable solutions to common problems. In the interest of the consistent development of European tort systems and in the interest of fundamental fairness, the legal profession should aspire to remedy the abovementioned anomalies as quickly and as thoroughly as possible. Using an updated version of H Koziol, Grundfragen des Schadenersatzrechts (The Basic Questions of Tort Law), 2010, as a starting point, this project seeks to take a step towards this goal. The latter will then form the basis upon which critical statements from the perspectives of the other European legal families (common law, Romanic, Scandinavian and Eastern Europe) as well as from Japan and the US will be drafted. The statements will in turn be instrumental in the draft of the conclusions, which will attempt to provide substantiated answers to the basic questions of tort law, above all its functions and aims but also numerous other important questions. By this, an attempt will be made to offer answers founded on comparative research to guide future developments in European tort law.
The project, which is funded under the auspiced of the FWF (Österreichischer Fonds zur Förderung der wissenschaftlichen Forschung [Austrian Science Fund]), began in July 2011 and will run for three years.