Strict Liability in Contemporary European Codification: Torn between Objects, Activities, and Their Risks

32 Pages Posted: 30 Apr 2013

Date Written: April 29, 2013

Abstract

Many national legislative frameworks in Europe limit the scope of strict liability to the specific sources of danger listed by statute. This in itself causes disparate treatment of seemingly similar dangers, since legislatively mandated instances cover some inherently dangerous situations but not others. Hence, European scholars call for the introduction of a “general clause” in the area of strict liability. A balance is sought between two opposites: restricting the application of statutory sources of strict liability on the one hand, and allowing unrestricted judicial policymaking to shape strict liability by referring to a “general clause” on the other hand. This Article aims to determine an adequate balance, taking into account fundamental prerequisites such as legal certainty, foreseeability (and therefore insurability), and equal treatment of equal sources of danger. It also addresses the scope of application of such rules. Should they be limited to the pursuit of abnormally dangerous activities, as many drafts propose, or to the control of abnormally hazardous objects? This Article argues that an ideal solution would be based on a legal standard that takes “object” rather than “activity” as the central criterion.

Keywords: strict liability, ultrahazardous activities, comparative tort law

JEL Classification: K13, K32, K41

Suggested Citation

Büyüksagis, Erdem and Van Boom, Willem H., Strict Liability in Contemporary European Codification: Torn between Objects, Activities, and Their Risks (April 29, 2013). Georgetown Journal of International Law, Vol. 44, No. 2, 2013. Available at SSRN: https://ssrn.com/abstract=2257859

Willem H. Van Boom

Leiden Law School ( email )

P.O. Box 9520
2300 RA Leiden, NL-2300RA
Netherlands

HOME PAGE: http://www.professorvanboom.eu

No contact information is available for Erdem Büyüksagis

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