Duties to Try and Duties to Succeed

Abstract

This essay develops a theoretical framework for thinking about the role of fault in tort law. The framework is organised around two ways that we might imagine lawmakers formulating private law duties. The ‘outcome model’ supposes that legal duties are requirements to bring about particular states of affairs or ‘outcomes’. An example would be a duty ‘not to trespass’: this duty requires its subjects to achieve the outcome of ‘not trespassing’. The second way, the ‘conduct model’, supposes that legal duties stipulate requirements to try to bring about outcomes. An example would be a legal duty ‘to try to avoid harming others’. I argue that each model allows for the possibility that the faultiness of a defendant’s behaviour may be relevant to the defendant’s liability to a judicial ruling to pay damages. But the way in which fault matters under these models differs. In the outcome model, fault, or more strictly the absence of fault, is relevant only as a potential excusatory defence: absence of fault, in this model, is a possible reason to deny liability for an admitted breach of duty. In contrast, in the conduct model fault is always relevant as part of the cause of action: there is no breach without fault. After explaining these models (and querying the coherence of ‘mixed’ models), I suggest that while both models can account, in broad outline, for the positive law, neither can account for the way that law is presented and explained. The essay concludes with a historical explanation (not a justification) of the contemporary understanding of fault’s role in tort law, together with a plea to think more seriously about the nature of private law duties.

Keywords: tort law, remedies, private law, private law theory, fault

JEL Classification: K10, K13, K40