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Schäfer, Hans-Bernd; Müller-Langer, Frank --- "Strict Liability versus Negligence" [2009] ELECD 287; in Faure, Michael (ed), "Tort Law and Economics" (Edward Elgar Publishing, 2009)

Book Title: Tort Law and Economics

Editor(s): Faure, Michael

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781847206596

Section: Chapter 1

Section Title: Strict Liability versus Negligence

Author(s): Schäfer, Hans-Bernd; Müller-Langer, Frank

Number of pages: 43

Extract:

1 Strict liability versus negligence
Hans-Bernd Schäfer and Frank Müller-Langer


1.1 Introduction
The purpose of this chapter is to compare negligence rules and strict liabili-
ty rules. They are the major rules of liability used in tort law to deal with
situations where one person (the injurer) causes harm to another person
(the victim). In England, France and Germany, for instance, the usual
forms of liability are the comparative negligence rule and strict liability
with the defence of relative negligence, and in the US it is the comparative
negligence rule, the negligence rule with the defence of contributory negli-
gence, and strict liability with the same defence. The details of these rules
will be discussed below. Zweigert and Kötz (1996, sections 40­43) provide
a rigorous description of tort law in England, France and Germany. For
the US, a good reference is Keeton et al. (1984, chapters 5, 11, 13).
Historically, it is interesting to observe the changes in the relative impor-
tance of different liability rules. Before the nineteenth century, for instance,
strict liability was predominant in most common law jurisdictions. In the
early and mid-nineteenth century, however, this changed, with negligence
and fault becoming the prevailing standard of tort liability, as Schwartz
(1981) notes. Since the twentieth century, rules of strict liability have
enjoyed a renaissance and have been applied more and more to determine
who should bear the costs of an accident and to what extent. A good
example of ...