What is Tort Law?

tort law

Tort, in common law, civil law, and the vast majority of legal systems that derive from them, any instance of harmful behaviour, such as physical attack on one’s person or interference with one’s possessions or with the use and enjoyment of one’s land, economic interests (under certain conditions), honour, reputation, and privacy. The term derives from Latin tortum, meaning “something twisted, wrung, or crooked.” The concept encompasses only those civil wrongs independent of contracts.

Other legal systems use different terminology for this wide and amorphous area of the law. Germans, for example, talk of unlawful acts, and French-inspired systems use interchangeably the terms délits (and quasi-délits) and extra-contractual civil responsibility. Despite differences of terminology, however, this area of the law is primarily concerned with liability for behaviour that the legal order regards as socially unacceptable, typically warranting the award of damages to the injured party or, occasionally, an injunction.

It is broadly true to say that most western European and common-law systems tend to regard as actionable the same factual situations. But although the problems encountere are identical and the results reached are often quite similar, the arrangement of the law and the methodology employed often differ significantly between countries, depending on how the law conceive and how solutions have been approach in various cultures over time.

Thus, the German Civil Code reflects a strong tendency to abstraction and systematization—qualities that betray the code’s university and Roman-law origins and that contrast at least superficially with the more casuistic (case-based) and judge-made law of the common-law systems. By contrast, the 19th-century codifications, which are the products of the natural school of law (see natural law), are mark by their broad sweep and manifesto-like provisions, often making them more readable than their German counterparts but also less precise and accordingly in need of judicial definition. Typical of this approach is the Napoleonic Code of 1804, which became a model for most Romanistic legal systems, including those of Italy and Spain and their derivatives, mainly in Central and South America. Much of the contemporary law in these countries results from the interplay between judicial activity and doctrinal writing.

Tort law, though often viewed as secondary to contract law in the law of civil obligations, spread to many parts of the world after World War II, and its influence was especially notable in continental Europe. At the same time, criticism of it has led to its replacement either partially by specialized schemes or, in rare cases, by complete systems of accident compensation.

Criticism has also provoked serious discussion about the impact of the welfare state, modern insurance practices, and the importance of economic analysis in the proper development of the law. For a time it even looked as if these challenges might bring about wholesale reform (such as that adopted in New Zealand in the 1970s) that would threaten rules with very ancient pedigrees. But the 20th century close with the tort system remaining basically intact, albeit held to a lower status within the entire system of compensation, as the majority of compensation for reparable injuries continue to be pay through social security systems and insurance claims.

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