105 Abstract This article explores the harmonisation of European tort law through court practice. The central question is to what extent the various Supreme Courts are reasoning in a manner that contributes to the harmonisation of European tort law. The research is based upon cases reported in the European Tort Law Yearbooks over the past 25 years, many of which are indexed in the EUROTORT database. The findings suggest that ‘soft law’ instruments such as the Principles of European Tort Law (PETL) and the Draft Common Frame of Reference (DCFR) have exerted a relatively modest influence. In contrast, EU law and the European Convention on Human Rights (ECHR) have significantly accelerated the harmonisation process. Toward the end of the article, current trends and developments are discussed. The author claims that the synergy among 1) liability questions pertaining to new technologies; 2) the demands of consistency within national tort law systems; and 3) the impact of Large Language Models will drive a stronger trend toward the harmonisation of European tort law.
125 Abstract Has tort law legislation adopted in the past 25 years by European legal systems brought about some harmonisation or have legislative changes led to the tort law systems drifting apart even further? The article attempts to answer this question by examining, qualitatively and quantitatively, the most important tort law reforms in European legal systems in the last quarter-century, and by assessing the most important drivers for statutory convergence and divergence.
175 Abstract Today’s tort law is based on the principle of fault; in addition, strict liability, which primarily covers sources of particular danger, is often recognised. All damage events that are not covered by these liabilities are referred to as fortuitous and are assessed in an undifferentiated manner according to the principle of ‘casum sentit dominus’. The exemption from liability often leads to the neglect of the injured party’s interests if their goods – assigned to them – are destroyed or damaged by accidental events. The prevailing one-sided consideration of the interests of the injuring party violates the principle that, in private law relationships, the interests of both sides must be given equal consideration, and thus also violates the principle of bilateral justification. The question arises as to whether the broad area of fortuitous damage requires a differentiated assessment and, if so, how a solution that complies with the principle of equal treatment and fits into a coherent overall concept of the law of loss allocation could be framed.
150 Abstract This article will examine European Union (EU) intervention (Treaty provisions, regulations, directives, decisions of the Court of Justice of the European Union [CJEU]) into the law of tort and the extent to which EU law acts as a force for harmonisation. By drawing on examples of primary and secondary sources of EU tort law, this article considers whether it is possible to identify a harmonising effect across the tort law of the EU or whether differences between the national tort law provisions in Member States prevail notwithstanding common EU law rules. Technological advances and the rise of Artificial Intelligence (AI) in the 21st century have introduced new forms of harm which detrimentally affect EU citizens. Will such developments encourage a move towards convergence of tort law rules – to find common solutions to common problems – or will divergences remain?
71 Abstract This essay aims to examine the critical issues surrounding the application of the current Product Liability Directive (85/374/EEC) to damage resulting from medicinal products, especially when such damage stems from adverse effects inherent to the medicine itself. The analysis will then consider whether these challenges can be addressed by the new Product Liability Directive (EU) 2024/2853 and by the Italian liability provisions under art 2050 of the Civil Code.
1 Abstract Recent years have seen significant legal developments, notably due to the widespread use of artificial intelligence (AI) and reforms in domestic legal systems. In Belgium, for instance, extra-contractual liability law underwent a fundamental reform with the entry into force of Book 6 of the New Civil Code on 1 January 2025. The new regime codifies existing case law, while introducing clearer concepts aimed at improving legal certainty. This article examines whether the specific provisions on fault-based liability take into account the reality of AI, comparing the new provisions with the former rules under the old Civil Code. Whereas the new provisions of Book 6 contain some elements that will turn out to be useful for AI, many unclarities on certain notions remains. The analysis highlights some of the elements that (Belgian) scholars, courts and policymakers need to consider with regard to fault-based liability and AI. By doing so, it puts forward a research agenda and offers ways forward to ensure that the new provisions on fault-based liability will survive the challenges related to AI.
38 Abstract This article examines the concept of ‘damage’ under the EU Product Liability Directive (EU) 2024/2853 and offers a comparative assessment against both the 1985 Directive 85/374/EEC and Turkish law. The new Directive responds to technological and market transformations by extending the product liability framework to digital realities, notably by encompassing software and data within the notion of ‘product’ and by recalibrating compensable heads of damage. Focusing on art 6 of Directive 2024/2853, the article analyses four core categories of recoverable harm: (i) death and personal injury, expressly including medically recognised psychological health impairments; (ii) property damage, subject to specific limitations; (iii) destruction or corruption of data, now treated as a compensable interest analogous to property; and (iv) non-material loss insofar as it is compensable under national law. It further clarifies the Directive’s deliberate exclusions – such as pure economic loss, privacy violations and discrimination as standalone triggers of strict liability – and the continued boundary between tort-based product liability and contractual remedies, particularly through the exclusion of damage to the defective product itself. The Turkish experience provides a revealing external lens. While Turkey’s Product Safety and Technical Regulations Code refers broadly to the Turkish Code of Obligations for the assessment of compensation, it lacks the Directive’s definitional clarity and contains structural ambiguities stemming from a fragmented transposition approach. By mapping points of alignment and divergence, the article highlights interpretive tensions – especially concerning digital harms and the classification of data – and develops reform-oriented insights for Turkish product liability law in light of the EU acquis .
In this paper, we compare the legislation and the case law in France and Mauritius on the delictual liability of parents for the harm caused by their minor child(ren). Such a comparison is justified from a historical point of view, as in Mauritius, even today, French civil law plays the role of a persuasive authority. However, important differences can be discerned between the French and Mauritian tort law regimes as regards the delictual liability of parents for the actions of their minor children. These differences concern the nature of the liability of parents, the place of the fault of a child in the structure of the delictual liability of their parents, the possibility/impossibility of emancipating a minor by marriage or a court decision, and the definition of cohabitation. This paper contains a critical analysis of these differences.
Tort law and human rights law represent two distinct legal frameworks that have been deployed in climate change litigation. Historically, early climate cases were predominantly grounded in tort law; however, a more recent and significant trend, referred to by some scholars as the ‘rights turn’, has seen a surge in rights-based claims. Despite the fundamental differences in their origins, objectives, policy considerations, scope, and available remedies, these two areas of law also operate within a comparable liability framework. The present study analyses the key challenges that have traditionally hindered tort-based climate litigation, including issues of justiciability, standing, defining compensable harm, establishing unlawful behaviour, and proving causation. By examining landmark cases from different parts of the world, the paper questions how the shift toward rights-based litigation may introduce novel legal strategies and frameworks to address these very challenges in tort-based litigation, ultimately reshaping the landscape of climate litigation.
Keeping pace with the advances in bioinformatics and digitalisation has become one of the central tasks of today’s legal system and its respective sub-areas. However, this will no longer be possible in the future without moving away from the ideal of a technology-free human individual as the only possible legal subject. Supreme Court case law recognises this necessity when it extends the boundaries of the human body beyond its ‘skin and skullcap’ and searches for ‘functional units’ of people and things in the world. Within the law, this can lead to legal subjectivity no longer being attributed exclusively to flesh-and-blood humans, but possibly also to non-human beings that have combined with them to form a single entity. Since the European Virtual Human Twins Initiative was launched by the European Commission in December 2023 to support the development and implementation of solutions for virtual human twins in the health and care sector, the protection of the human body has also shifted beyond the analogue world into a digital world. Legal protection concepts for digital body data that are analogous to ownership will no longer help people in the foreseeable future. Effective protection of the legal subject ‘human being’ in its entirety, ie including its technical self-extensions and images, is only possible by turning away from the traditional subject-object dualism and can only be found in a ‘deanthropocentric legal subjectivity’. This involves renegotiating who or what can, and should, have the status of a legal subject under changed social conditions. The task of a technologically-enlightened law is to identify the new ‘legal subject candidates’ and examine their personification potential. Although the present treatise examines the phenomenon of bodily externalisations based on German tort law, the developed theses are universally applicable to other legal systems. 206 In the words of Rudolf Wiethölter, ‘work on the paradigm, not in the paradigm’. 1
Around the world, plaintiffs exposed to climate-related harms or hazards are increasingly bringing tort claims against private corporations. Many argue that these lawsuits are dead on arrival because tort law is ill-equipped to address the complexities posed by climate change. In this article, I aim to demonstrate the opposite. I will show that causation is no longer an insurmountable hurdle and that plaintiffs stand a realistic chance of succeeding in court. Moreover, imposing a duty of care on major greenhouse gas (GHG) emitters is neither arbitrary nor unfair, but fully consistent with well-established tort doctrine and case law. Applying the principle of several liability, major GHG emitters should be held liable in proportion to their contribution to the climate-related harm or hazard suffered by the plaintiff. To build my argument, I draw on a prominent climate liability case from Germany that was recently decided: Lliuya v RWE – in which the court endorsed many of the arguments presented here and confirmed that major GHG emitters can, in principle, be held liable for climate-related harms and hazards. Since the concepts of causation and duty of care share a common core across jurisdictions, my analysis of German doctrine and case law will offer valuable insights for climate liability litigation around the world.
The present paper provides a comparative law analysis of liability for per- and polyfluoroalkyl substances (PFAS) pollution with a special focus on grounds for liability. The paper explores liability based on public and private law to reflect on the role of environmental litigation, its potential and its limitations. Further, with this scope and aim, the paper shall demonstrate the necessity of taking intra-, inter- and transdisciplinary approaches to tackle chemical environmental pollution. While the present paper focusses on forever chemicals, it furthermore emphasises the necessity to better understand the impacts of anthropogenic chemicals on the environment and human health.
187 In its decisions on asbestos-related mesothelioma claims, the European Court of Human Rights (ECtHR) has held that where it is scientifically proven that it is impossible for a person to know that they suffer from a certain illness, this must be taken into account for the purposes of limitation. This contribution explores from a comparative perspective which conclusions can (or cannot) be drawn from these decisions for future tort claims relating to forever chemicals. In particular, it discusses the notion of ‘illness’, knowledge of which must be possible under the ECtHR’s case law; whether the current difficulties of establishing causation between exposure to forever chemicals and an illness might one day have the same impact on limitation as the impossibility of knowing that one is ill before the limitation period has expired; and the potential impact of increased-risk claims on limitation. While the focus lies on personal injury claims, property claims are also addressed.
The ubiquity of the thousands of artificial substances known generically as PFAS is increasingly apparent. Their presence in human blood, drinking water, commercial fisheries, soil, and consumer products, alongside their association with a range of health and environmental impacts, is stimulating tort claims globally. These claims are likely to raise recurring causal challenges for claimants and courts. This contribution will explore some of those challenges, focusing on English law, and on core issues around, first, scientific uncertainty about the effects of these chemicals, and secondly, the existence of multiple possible causal factors in many cases. Establishing causation for disease (rather than contamination) is likely to be extremely difficult. As in other areas of complex causation, maintaining strict causal requirements might reasonably be understood either as protecting or as undermining the fundamental values of tort: even if this dilemma cannot be resolved, it is worth raising.
This paper examines the complex issue of persistent substances through the lens of tort liability, with a particular focus on the notion of damage. These substances are ubiquitous in the environment, and their complete elimination is virtually unattainable due to their exceptional chemical stability under natural conditions. The harms associated with their presence are varied and far-reaching, encompassing personal injury, property damage, and environmental harm. The study provides an overview of the different types of tort claims brought in response to such damage, as well as the challenges and limitations encountered in establishing liability from a comparative legal perspective.
71 This article responds to four thoughtful critics of my book Reasonableness and Risk (OUP, 2022). In response to Felipe Jiménez’ argument that my view is instrumentalist, I explain why I think that instrumentalism and formalism play complementary roles in my view. Because persons, not law, have intrinsic value, the formal concepts of the law must be articulated in ways which further the interests of the persons whose relations they govern. My reply to Diego M Papayannis explains why I believe that strict liability does not collapse into a price system when it is understood as a conditional wrong, and why even administrative schemes do interpersonal justice. Agreeing with Jenny Steele, I elaborate on why my view is supportive of her thesis that enterprise liability informs modern negligence law. In response to Silvia Zorzetto, I explain how it is that my view moves from the metaphysics that she emphasizes to moral and political theory.
20 Gregory C Keating’s Reasonableness and Risk is an important and insightful contribution to tort theory. The account Keating offers is a distinctive view that denies some of the central tenets of the economic analysis of tort law. At the same time, however, Keating 21 rejects the formalism of Kantian theorists like Weinrib and Ripstein. This commentary focuses on what separates Keating from the Kantian formalism of Weinrib and Ripstein – namely, that Keating is an instrumentalist about legal institutions. Keating’s instrumentalism makes his theory more plausible, to my mind, than the interpretation of tort law in terms of corrective justice, Kantian right, or mutual independence. But it also makes the central features of tort law, and of the common law more broadly, subject to contingency: once we adopt an instrumentalist perspective, it is always an open factual question whether the rules, doctrines, and institutions we have are justified.
4 This paper explores the significance of heterogeneity in Gregory C Keating’s Reasonableness and Risk , and defends his heterogenous approach while also noting the significance of his distinction between the world of activities and the world of actions. It notes that English common law takes a different route to liability for activities from the approach described, which is drawn from US law. Finally, it proposes that we seize the insights connected with acts and activities and develop them further, noting in particular the frequent involvement of multiple enterprises in activities, and the means law has of responding to this, as well as future challenges.
52 This commentary explores the various meanings and dimensions of reasonableness as presented by Gregory C Keating in Reasonableness and Risk . It examines the concept’s foundations, particularly in relation to the principle of non-harmful interference between individuals, as well as its underlying metaphysical assumptions concerning human vulnerability. Beginning with a distinction between the rational and the reasonable, the essay addresses key topics such as the duty of reasonable care, the Golden Rule, and universalizability, along with their connections to the principle of non-harmful interference. Furthermore, the commentary investigates how the notion of reasonableness intersects with concepts such as common sense, normality, and average prudence. It also considers the role of proportional balancing in Keating’s understanding of tort law. The primary aim of this commentary is to examine the philosophical foundations underpinning Keating’s conception and to clarify its implicit premises and broader implications. Keating’s analysis offers significant insights into the ideologies and methodologies that shape tort law, extending beyond the boundaries of Anglo-North American or common law systems. These ideologies and methodologies, it is suggested, are not intrinsic to tort law itself. The analysis emphasises how reasonableness reflects individual ethical orientations and highlights its pervasive role in the functioning of tort law. Moreover, it underscores that the cost-benefit approach within tort law resists simple mathematical calculation, as it is ultimately grounded in the concept of reasonableness. Finally, the commentary defends the thesis that reasonableness is embedded in the overarching principle of non-harmful interference between individuals and shapes the doctrines, instruments, and principles that govern the implementation of tort law.
