Magnus, Ulrich --- "Tort Law in General" [2006] ELECD 217; in Smits, M. Jan (ed), "Elgar Encyclopedia of Comparative Law" (Edward Elgar Publishing, 2006)

Book Title: Elgar Encyclopedia of Comparative Law

Editor(s): Smits, M. Jan

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781845420130

Section: Chapter 66

Section Title: Tort Law in General

Author(s): Magnus, Ulrich

Number of pages: 11

Extract:

66 Tort law in general*
Ulrich Magnus


1 Definition
Every legal system knows of tort law as a substantial part of its law. Even
countries like New Zealand, which have almost entirely abandoned tort law
with respect to personal injury cases and have replaced it with a social
insurance scheme, still retain it for cases of damage to property and eco-
nomic interests (cf. Todd, 1997, pp. 62ff.). Tort law is therefore an indis-
pensable part of law; it is that branch of law which provides remedies for
civil wrongs, in particular where one party has caused damage to the other.
But, unlike contractual liability, tort liability arises irrespectively of any
prior agreement between the parties that the damage should be made good;
liability in tort does not depend on whether the tortfeasor has ­ by the prior
conclusion of a contract ­ agreed to its sanctions (see von Bar, 1999, 2001,
vol. 1). Tort law fixes general duties which bind every member of a society
and whose breach obliges in any event (see, for more or less identical defi-
nitions, Kötz and Wagner, 2001; Winfield and Jolowicz, 2001, p. 4; gener-
ally also Englard, 1993).

2 Aims, functions and interests
2.1 Aims
Tort law pursues no single aim but a number of aims. One of its main aims
is to provide for the compensation of losses which unavoidably occur in
society and which tortfeasors cause to others (agreeing to the compen-
satory aim, for instance: Koziol, 1997; Viney, 1992, ...