Abstract: With regard to the recodification efforts of the Czech legislature, approaches appear to lead towards the identification of two separate prerequisites of liability, namely wrongfulness and fault. Relying on the definition of the presumptions of negligence, different opinions have been voiced concerning the understanding of fault. Which standard of consideration (purely objective, differential objective, subjectivised, or purely subjective) should be applied? Such considerations (and theoretical solutions) must also be based on the analysis of wrongfulness in terms of its meaning and function in the system of tort law. The purpose of this paper is to outline the comparative context (Austria, Germany, France, Switzerland, the Netherlands, Italy), and to analyse wrongfulness in selected jurisdictions with respect to trends in traditional doctrine and case law.
Key words: Wrongfulness; unlawfulness of the conduct; civil liability; unlawfulness of the result, juristic person; fault; imputability
- 1. Wrongfulness – general comments – § 2. Foreign approaches – § 3. Summary
1. Wrongfulness – general comments
Wrongfulness is in the majority of jurisdictions considered an essential prerequisite for liability for damage in addition to the existence of damage, causal relation, and fault (in the case of liability based on fault). This also formed the basis of the system of the Czech tort law, which perceived an element of wrongfulness as a necessary, objective prerequisite for liability. However, not all European national legal regulations treat this prerequisite in the same manner, and there are even legal regulations that do not require wrongfulness as a separate category as a prerequisite of liability.
The following analysis of selected foreign legal regulations shows, among other things, the key models applied in European regulations on the law of tort, their mutual interaction, and the importance assigned to the aspect of wrongfulness in local doctrine or judgments. The comparative analysis covers states and their national legal regulations based on the criteria of importance in the European continental area (Germany, France), novelty (the Netherlands), intended reform or review of the existing tort law systems (Switzerland, France, Austria), or with respect to a special invention and an unusual approach (Italy).
Three fundamentally different systems (English, French, and German) are applied in Europe, with the latter two models being the most influential in continental Europe. The other legal systems usually tend toward the French or German system, or try to find some kind of intersection between both systems, and apply often hybrid schemes (e.g., Italy, Switzerland, Austria).
In view of the Czech legislature’s efforts at re-enactment, which also affected tort law, it is necessary to monitor such legislative trends, their reflection in the doctrine, and their possible interpretation in judgments, as some opinions tend towards identification of the prerequisite of wrongfulness with that of fault, or in other words, towards blurring the elementary difference between the two. Relying on the definition of presumptions of negligence, opinions vary as to what should be the understanding of fault and negligence and what standard of consideration (purely objective, differential objective, subjectivised, and purely subjective) should be applied to negligence.
2. Foreign approaches
In German law, tort is understood as a wrongful (rechtswidrig) infringement of the rights and interests of another that is based on fault (schuldhaft) and at the same time amounts to a breach of general or special legal duty. In the Bürgerliches Gesetzbuch (“BGB”), the law of tort is based on three fundamental provisions, which at the same time represent three different clauses or in other words three groups of tortious (i.e., wrongful) acts.
The first group of torts arises from the provision of section 823 (1) of the BGB titled “Schadensersatzpflicht” (“liability in damages”): “A person who, intentionally or negligently, unlawfully injures the life, body, health, freedom, property, or another right of another person is liable to make compensation to the other party for the damage arising from this.” Under this provision, any interference with the private sphere defined by law of an individual (life, health, body, freedom, property) gives rise to liability, provided that the interference was unlawful and that damage was caused.
The full list of values and interests protected by law is nevertheless in German law complemented by two other provisions considerably extending the construction of unlawfulness. It concerns primarily section 823 (2) of the BGB. Under this provision, every person breaching a special legal regulation, the purpose of which is to protect the rights and interests of another, has civil liability for his acts. In this case the breach must be (from the point of view of civil liability) based on fault, despite the fact that a specific protective rule or regulation (Schutznorm, Schutzgesetz) may also be breached without fault. The same approach is taken by Austrian law. The provision of subsection two of section 823 clearly extends the boundaries of civil delictual liability to situations in which fault-based breach of a special rule protecting individuals, i.e., their rights, interests, and property values, is committed.
The third group of undesirable acts having the nature of tort under the BGB are the acts defined in its section 826: “A person who, in a manner contrary to public policy, intentionally inflicts damage on another person is liable to the other person to make compensation for the damage.”
This is the point where the German and the French conception differs significantly. Whereas in Germany the doctrine adheres to a “relative” conception of tort, the French system is based on an absolute conception. German theory is based on the idea that breach of a rule of conduct becomes a tort, and thus gives rise to liability, solely in relation to persons that are protected by this rule of conduct and only to the extent that such an act causes damage against which these persons are protected by the rule.
The approach, in theory referred to as Aquilian relativity, found the most extensive practical application in German doctrine but is also present in some other civil codes influenced by German law. While in Switzerland, Austria, or Turkey this doctrine had a significant influence predominantly on judgments and jurisprudence (the doctrine has never reached clear reflection in the legislation of these states), in the Netherlands the doctrine was fully recognized and approved in positive law. Article 163 of Book 6 of the new Dutch Civil Code states that there is no obligation to compensate the damage if the breached rule does not intend to offer protection against the damage suffered by the injured person.
The principle of relative tort found its reflection in positive law also in the Czech environment in cases of wrongful interference with rights other than those with absolute relevance (cf. section 2910: “A wrongdoer who is at fault for breaching a duty imposed by law, thereby interfering with an absolute right of the injured, must provide compensation to the injured for the harm caused. The duty to compensate is imposed also on a wrongdoer interfering with other right of the injured by a fault-based breach of duty stipulated by a law in order to protect such right.”).
This theory is, to a certain extent, also used in Common Law primarily in the interpretation of torts by negligence and, as shown by André Tunc, it is reflected in many important judgments of the courts in the United States and England. In France, in contrast, this doctrine remains without any major response. Some judgments of French courts were inspired by the Aquilian relativity theory; however, the theory concerned only the admissibility or inadmissibility of civil claim arising from a criminal offence of wrongdoer. There are isolated cases of judgments reasoned merely by the intention and subject matter of the breached rule in an attempt to assess the direct nature of causal nexus, particularly in cases of breach of building and planning regulations. Nevertheless, in terms of civil law – as stated by Viney – this theory proves to be of no practical use, as it is illusory to try to define in advance the subject-matter operation and applicability for a generally formulated principle both in terms of protected persons and compensated injury.
The protected interests defined by law are of key importance in German law from the point of view of wrongfulness. Fault as such is related to wrongfulness, or a wrongful result consisting in breach of goods protected by law (Rechtsgut), the list of which is provided by the legislature (section 823 (1)) either directly in the civil code or by way of special laws aiming at protecting specific rights, interests, and values (Schutzgesetze).
Another important difference between the French and German systems consists in the concept of wrongfulness (Rechtswidrigkeit), which in the German tort system is considered separately and independently of fault (Verschulden), as a prerequisite giving rise to liability.
The German doctrine, in principle similarly to the Austrian, is split in terms of the theoretical perspective of wrongfulness and the relationship between wrongfulness and fault (the dividing line between the two). The thesis of perfect distinction between wrongfulness and fault is relativised by some modern theories. The traditional and currently prevailing theoretical concept of wrongfulness is, in contrast to Austria, Greece, and England, the theory of unlawfulness of result (Theorie des Erfolgsunrechts). It characterises wrongfulness as an objective infringement of the legal system (i.e., harmful result) constituted by satisfying certain objective elements (infringement of an absolutely protected interest or value). In other words, each interference in the protected sphere of another person that is not justified by a legal rule is wrongful. Thus in Germany the result/effect is understood slightly differently (more teleologically) compared to the Czech environment, where the regular understanding of result/effect is the actual consequence of the risky activity of the wrongdoer.
The understanding of fault is based on the wrongdoer not keeping up to the required standard of due care that may be expected in the given situation, either intentionally or negligently (“innere” and „außere“). In reality, the standard of due care is considered objectively in relation to a reasonable person, which results in considerable objectivisation of this, otherwise subjective, prerequisite. Similar trends may certainly also be expected in the context of our new legal regulation, as the relevant wording of the law was inspired by German regulation (see below).
Nevertheless, the other prominent theory of wrongfulness gradually and slowly made its way into German judgments. The theory, called in German doctrine the theory of unlawfulness of conduct (Theorie des Handlungsunrechts), considers the objectively assessed standard of due care to be an integral part of wrongfulness and separates the standard from the concept of fault to such an extent that it is willing to qualify interference in the interests of another person protected by law as wrongful only providing that at the same time there was an infringement of the objective (objectively assessed) standard of due care (Sorgfaltspflicht).
The actual predominant doctrinal opinion is based on the fact that the intervention which directly interferes with the protected goods (i.e. Unmittelbare Rechtsgutsverletzungen) is unlawful per se (Erfolgsunrecht) while when intervention is indirect (mittelbare Rechtsgutsverletzungen) it is necessary to break and objective standard of care (Handlungsunrecht).
Christian von Bar adds that the concept of fault, which becomes hollowed in this theory of Handlungsunrechtslehre, plays a limited role only in examining the defences to wrongfulness which may be invoked by the wrongdoer, or in situations in which fault may not be imputed to the wrongdoer due to mental disorder. Fault is thus reduced to the concept of imputability (Vorwerfbarkeit).
The issue of proper conduct, or in other words standards of due care, is currently very topical. It becomes even more important in the context of complicated technical procedures necessary for the operation of an information-based, highly industrialised society. German courts reacted with the gradual creation of new standards or the redefinition of existing standards of required conduct (Verkehrspflichten), always with respect to the specific safety and control mechanisms in individual branches of professional activity. It appears to be a paradox that the German tort system is thus becoming less clear and precise in separating wrongfulness from fault (at least in torts by negligence), bringing it closer to the French conception of tort.
The German conception of wrongfulness lies between the French conception and that of tort in Common Law. The German civil code appears to stop half way in the development of civil liability. It departed from the traditional Anglo-Saxon conception of torts based on the definition of several standardized torts, yet it did not venture to fully adopt the French model relying on the principle of general liability for any injury caused by fault-based wrongful acts (the concept of general tort). One of the reasons probably was a reluctance to entrust the courts with such broad discretion in establishing civil liability.
In conclusion, it is necessary to say that liability for fault will not succeed without wrongfulness. Indeed, wrongfulness remains conditio sine qua non for establishing so-called liability based on fault. However, wrongful endangering of goods protected by law as such, without causing damage, even if intentional, does not give rise to civil liability.
From the perspective of the concept of wrongfulness, France represents a distinct model. First of all, French law does not clearly distinguish wrongfulness (illicéité) from fault (culpabilité) and both concepts merge into the concept of “faute” as one of the three prerequisites giving rise to liability. Both concepts are amalgamated to such an extent that French authors do not differentiate between them specifically when they discuss their own system. For the purposes of our analysis it is important to always deal with the conception of wrongfulness in close relation to the construction of “faute”.
In order for anyone to be found liable within the meaning of liability based on “faute”, his acts must be wrongful. This is the case whenever there is a violation of imperative legal rules of a legislative (législatives) or regulatory nature (réglementaires). Violation of a legal rule imposed by the legal system is automatically wrongful (i.e., results in civil liability), without the need to examine the subjective relation of the wrongdoer to the acts, i.e., without the need to prove the fault of the wrongdoer as is ordinarily the case in the Austrian or Czech conception. Wrongfulness is also automatically established in the case of infringement of any other right with absolute relevance (e.g., property rights or personal rights).
In addition, any acts subsumed under tort liability by French judges in accordance with the concept of “faute” based on their broad discretion are also deemed wrongful. The criterion applied in judges’ discretionary decisions is a quasi legal term – general rule of conduct (la norme générale de comportement), as reflected in Article 1383 of the CC (in the wording effective as of 1st October 2016 it is Article 1241), which creates a “negligence” complement to the central provision regulating civil liability.
The French legislature reached a wording of general tort based on the principle of general civil liability for intentional acts causing damage to another. This is reflected in the legislation in Article 1382 of the CC (in the wording effective as of 1st October 2016 it is Article 1240): “Any fault-based (wrongful) act of an individual, which causes damage to another, obliges him to compensate it.” The “negligence” complement provided in Article 1383 of the CC further specifies that: “Everyone is liable for the damage he causes not only by his action but also by his negligence or imprudence.” French case law subsequently seized the opportunity provided by the legislature and developed a wide range of conceptions of negligence and imprudence. The judge in such cases always asks himself how a reasonable person would act in such circumstances and considers the facts in abstracto, i.e., objectively assesses the acts of the wrongdoer.
The first and still notable definition of “faute” is provided by Marcel Planiol, who states that it is a breach of certain pre-existing (i.e., existing before its breach) duties not specified in any greater detail. This thesis leaves no room for doubt if we assume that it is breach of duty identifiable based on some provision of positive law (e.g., a driver not following the road traffic rules). However, “faute” may apply also to other cases in which the “duty” is based only on moral or ethical principles or customs. The effort to also prove that in these cases the duty existed before the act of the wrongdoer is not useful. A more appropriate approach proposed by French doctrine is to focus the attention directly on the act of the wrongdoer and to attribute the characteristic of “fautive” to the act.
Jean Carbonnier understood “faute” as purely wrongful act (fait illicite). In his analytical interpretation, “faute” is a combination of three distinct elements: (i) the physical basis of “faute” is the deed, the act itself (physical or mental influence) as dealt with in Article 1382 of the CC; (ii) the human component is represented by the personal element, as it must be an act of an individual, and (iii) the sociological dimension is represented by the anti-social character of the wrongdoer’s conduct. This is qualified by Carbonnier as wrongfulness in the broad sense of the word (non licet). Carbonnier’s definition, however interesting for its original sociological insight, is currently being confronted by the conceptions of other authors.
It is possible to quote, among others, the conceptions of Dejean de la Bâtie and Alain Bénabent. The former considers “faute civile” as conduct deemed defective either because it is intended to cause damage or because it is in contravention of a legal rule, or simply because it appears to be unreasonable and clumsy. The concept is not fully exhausted until the rule of conduct of “good family father” (bonus pater familias) is finally applied as the required standard. Bénabent considers “faute” as defying the attitude that may otherwise be expected among fellow citizens who are ordinarily conscious and respect the balance required by life in society. It is possible to conclude the discussion by stating that the French conception of wrongfulness remains relatively vague despite efforts to define it. “Faute” may be understood more pragmatically as an error or certain defect of conduct (erreur ou une défaillance de conduite).
In one of its projects of overall reform of the law of obligations, the French legislature consolidated the above-mentioned efforts to create a positive definition of “faute”. The so-called “Avant-projet Catala” contained a definition of “faute.” In the draft reform, Article 1352 (2) of the CC states that: “Faute arises from breach of rule of conduct imposed by law or other legal regulation or from failure to exercise a general duty of prudence and due care.” France is currently undertaking partial reform of its Code Civil consisting in reform of the law of obligations by Decree No. 2016-131 of 10th February 2016. The changes, which also entail the renumbering of traditional articles of the Code Civil, entered into effect on 1st October 2016. With respect to the sensitivity (both political and social) of the changes in contractual and non-contractual liability, the French legislature has not yet proceeded with the subject-matter reform of this branch. At the same time, the legislature announced that delictual and contractual liability would be subject to reforms at a later date.
Under French law, in order for someone to be made liable from the perspective of meeting the prerequisite of “faute”, it is not sufficient for his acts to be wrongful. Wrongful acts must be imputable to the wrongdoer. It is the imputability aspect which complements the characteristic of “faute.” The French doctrine of imputability (l’imputabilité) raises another important requirement for the establishment of someone’s liability. It is not sufficient for the wrongdoer to engage in conduct that is considered undesirable by society, the wrongdoer must also be aware (the element of awareness is from our point of view related to the concept of fault) of the detrimental nature of such conduct.
There was a clear overlap between criminal and civil law doctrine in this respect. French case law and doctrine supported each other towards the end of the 19th and the first half of the 20th century in the idea that immunity from liability applies to everybody who cannot judge (for lack of intellectual maturity) the consequences of their acts. As a result, minor children and mentally ill persons were exempt from the regime of civil liability.
This conception has been subject to considerable criticism since the 1960s. To such an extent, in fact, that within the framework of the amendment of the civil regulation of legal (in)capacity (les incapacités) in 1968 the French legislature inserted a completely new provision in Article 489 (2) of the CC: “A person who has caused damage to another when he was under the influence of a mental disorder is nonetheless liable to compensation.” After a brief period of hesitation of the doctrine, the interpretation that prevailed was that in fact this is a departure from the requirement of intellectual (moral) imputability of acts, and that from now on the civil liability of persons suffering from mental disorders would be subject to the same regime of “faute” as that of persons of sound mind. Sixteen years later, the doctrine of imputability relying on the presumption of the ability of an individual to identify and recognize the dangerousness of his acts for his delictual capacity suffered another significant blow when the French Court of Cassation decided to abandon this presumption in the case of minors as well, and admitted that minor children also had the capacity to commit “faute” with all the civil law consequences. This meant a considerable weakening of imputability as an aspect of “faute”.
Wrongfulness does not arise in those cases where there are circumstances anticipated by law (les faits justificatifs) that exclude liability. The list of such defences to wrongfulness is in French law of tort similar to that in Czech law. Subject to several exceptions, the law does not explicitly regulate the defences, and their application and interpretation remains in the hands of courts and potentially the doctrine. There is only one defence (force majeure) that was taken over from contractual liability; the other defences originate from criminal doctrine.
In conclusion, it may be stated that in the French conception, wrongfulness and fault create an inseparable whole (they are constitutive elements of “faute”) where wrongfulness is the objective component and fault is the subjective component. The most apt translation of the term “faute” would be “fault-based wrongful act.” Trying to separate the two components makes little sense in French law.
The importance of wrongfulness as a fundamental prerequisite of civil liability is in Austrian civil law based on the positive legal definition of acts giving rise to damage. Wrongfulness is explicitly mentioned in section 1294 of the ABGB: “Damage arises either from wrongful acts or omissions of another, or by coincidence. Wrongful damage is caused either intentionally or unintentionally. Intentional damage consists either of malice aforethought, if the damage was caused consciously and willfully, or of negligence (an oversight), if the damage was caused by voluntary ignorance or lack of due attention or due care. Both of these cases are referred to as fault.”
The basic rule of the Austrian tort law makes a distinction between damage caused by wrongful act/omission and that caused by coincidence. With respect to the fact that only fault-based wrongful acts (including omissions), i.e., tort in the strict sense of the word, may give rise to liability, the element of wrongfulness becomes more important. Fault in Austrian civil law is, similarly to the Czech tort law, perceived as a subjective prerequisite of liability in those cases where fault is taken into consideration. However, fault as such is rather seen as an attitude, or the subjective mental attitude of the wrongdoer to the wrongful act. It is a separate category, completely independent of wrongfulness, which in turn constitutes an objective precondition to liability. A simple cause and effect relationship between the act and the damage is not sufficient to constitute liability, other facts must be present justifying the duty of another to compensate the damage, i.e., the essential prerequisites of liability (zurechnungsgründe). Wrongfulness as an objectively perceived circumstance of the act is one such prerequisite.
Helmut Koziol considers wrongfulness together with fault as essential, and places them at the very heart of the law of tort, particularly in those cases where liability is based on the fault of the wrongdoer (sections 1295 and 1311 ABGB) or in cases of liability for the acts of another.
In terms of the theoretical conception of wrongfulness, there are two approaches in Austrian doctrine. While the theory of unlawfulness of conduct (Verhaltensunrechtslehre) finds human behaviour, whether active (acts) or passive (omissions), wrongful, the theory of unlawfulness of result (Erfolgsunrechtslehre) considers the result/effect as the basis for wrongfulness. Nevertheless, from the point of view of the prevailing Austrian theory, the conclusions of the former theory, inferring that human conduct as such may be considered wrongful rather than the result of such conduct, seem more convincing. This thesis is also more convincing in clarifying the existence of defences to wrongfulness.
The theory of unlawfulness of conduct is also criticised, particularly because full identification with the idea of unlawfulness of conduct as such results in blurring the difference between wrongfulness on the one hand and fault on the other, and the distinction itself loses its raison d’etre. Nevertheless, Koziol in this context very pertinently points out the distinctive feature: wrongfulness is an objective category whereas fault is a subjective attribute.
Not all acts that are objectively in contravention of the law (are wrongful) are based on fault. The same approach is also typical for Czech doctrine, although the situation is more complicated due to the existence of various events that originate in legal activity but result in wrongful states (a so-called loss-causing event qualified by law).
The Austrian tort law provides for special cases where despite the missing subjective prerequisite (fault), liability may arise from wrongfulness in combination with another legal fact. Such a legal fact is the so-called financial capacity to bear the loss (wirtschaftlichen Tragfähigkeit). This conclusion relies on the provision of section 1310 of the ABGB.
In accordance with this provision, a judge may impose the duty to compensate damage in full or in part on a wrongdoer who is otherwise immune from tort liability if the injured party cannot for some reason recover compensation from the person who had custody of the wrongdoer immune from tort liability or was to exercise supervision over such person, i.e., even a minor or a mentally ill person may be made liable to compensate the damage. It is, however, a judicial instrument extraordinary in nature aiming at balancing a clearly unreasonable and unfair impact of lack of liability of some at the expense of others in the spirit of principles of equity. A similar principle is also present in German regulations (Billigkeitshaftung – cf. section 829 BGB) and after the reenactment explicitly also in the Czech law in force (cf. section 2920 (2) OZ). The motive in this case is also to achieve fairness.
The Austrian and now also Czech regulations define three situations in which it is possible to impose the duty to compensate damage on someone who is otherwise immune from tort liability, and thus on a person in whose case it is not possible to talk about fault and consequently about a (wrongful) act based on fault. They are cases in which fault yields to the prerequisite of wrongfulness or, in other words, in which fault is replaced by another legal fact.
The first type of situation to which the quoted provisions (section 1310 ABGB and section 2920 OZ) apply is the state in which the wrongdoer, who is otherwise immune from tort liability (due to mental illness or minority), is at the time of perpetrating the tort in such a state of mind and consciousness that the wrongdoer is aware of the fact that he is doing something prohibited. Such a situation is referred to as an act by a person immune from liability in a so-called lucid interval (intervallum lucidum). The second situation may be outlined as the injured not defending himself against the wrongdoer because he fears that he may harm the wrongdoer or further aggravate the wrongdoer, and thus the injured is passively standing by while the damage is being done even though in other circumstances the injured would successfully prevent the damage through self-help or would at least try to do so. Finally, the third and very important situation is the property circumstances of the injured and the wrongdoer. In a situation where the wrongdoer is affluent and financially capable of bearing the consequences of his wrongful act, whereas the property circumstances of the injured are rather modest, it appears to be desirable that the judge have the option to impose the duty to compensate the damage on a person that is immune from tort liability.
Let us now ask the question of what is wrongful, or what wrongfulness is related to in the Austrian legal system? Leaving aside the fact that breach of contractual obligation (lex contractus) is also wrongful, in the extracontractual area there are three parallel complementary sets.
The first set of wrongful acts is covered by breach of special legal rule, which is a rule containing certain limits on human conduct in various situations. Throughout the legal system, such rules form part of various laws, or protective regulations (Schutzgesetze), typically in administrative law (e.g., road traffic rules, construction rules, safety, and other rules) or in criminal law. The breach of such imperative rules of conduct automatically constitutes wrongfulness.
In Austria where, as opposed to France and Belgium, there is no such concept as general tort, the construction of wrongfulness relying on special protective regulations must be complemented by another element. This other element is a provision stating that every intentional act against good morals is wrongful. This regulation is expressed in the provision of section 1295 (2) of the ABGB: “A person intentionally causing damage in a manner against good morals is liable for such damage; if it occurs during the enforcement of the law however, such a person is liable only if there was a clear intention in the enforcement of the law to cause damage to another” (section 2909 of Czech Civil Code was clearly inspired by this provision). This set of wrongful acts is more open than the first category, but it is less clear because we do not know its limits in advance; the limits remain hidden behind the judges’ perception of moral and immoral acts. Not even this set creates a sufficient “anti-delictual shield” against undesirable conduct due to the requirement of intention that is raised in this provision as a subjective prerequisite for liability.
The conception of wrongfulness under Austrian civil law becomes complete with a concept gradually growing in importance – the concept of interests and values protected by law; injury to such interests and values is deemed wrongful if it is of such intensity that it qualifies as breach of certain objective standards of conduct (objektive Sorgfaltspflicht). The drawback of this concept lies in the lack of a clear definition of such rights and interests protected by law. No major difficulties occur in those cases where the existence of the right or the protected goods is obvious and such goods are easily identifiable (ownership, physical integrity). However, the values and interests whose existence and importance is unknown or blurred tend to be much more difficult to identify, which may be the case for many components of rights of a personal nature. The lists and concise definitions thereof are not usually provided, the understanding and description of such values and interests relies on the doctrine and case law. Canaris is rather skeptical in concluding the discussion of the interests protected by law and the breach thereof as a source of wrongful acts in the Austrian system. Canaris concludes that the scope and level of protection of rights and interests protected by law is in direct proportion to the precision and clarity of their legal contours. In other words, the less clear the contours of a certain right (right to privacy, freedom of expression, right to information, etc.), the less protection such right is afforded by the law of tort.
Within the framework of the planned amendment of the ABGB, the Austrian legislature is considering the overall conception of the law of tort and how it is structured. The draft amendment affects also the concept of wrongfulness.
In the planned amendment, the legislature approaches wrongfulness by means of the concept of imputability as it states that the damage must be compensated by the person (i.e., the person is liable for the damage) to whom the damage may be imputed based on law. Imputable damage is in particular such damage that was caused by an act based on fault. And the wrongdoer is held liable for the act based on fault if the act of the wrongdoer may be deemed wrongful (cf. draft amendment of the provisions of section 1292 (2) and section 1295 (1)). Wrongfulness thus remains one of the essential prerequisites for liability for an act based on fault.
Wrongfulness still covers three basic groups of facts provided for in one subsection with the necessary explicative definitions in the subsequent provisions. Wrongfulness is perceived as being in objective conflict with the standard of due care (the point of view of care by a reasonable person) and it is found in three acts:
- breach of a protected interest;
- breach of a specific rule stipulated in a so-called protective regulation (Schutzgesetz); and
- act against good morals.
The point of view of care that is of key importance in the determination of wrongfulness is further expanded. The draft considers stipulating the general duty to act with such a standard of care that may be expected under the given circumstances from a reasonable person having respect for the interests of other persons. As supplementary criteria of the degree and value of endangered interests (the point of view of the injured) and pursued interests (the point of view of the wrongdoer), the amendment takes into consideration the dangerousness of the situation, proximity of the relationship between the persons involved, the possibility of having prevented the damage, and the related costs and effort.
The conclusions arising from the analysis of the current and planned Austrian legislation are relevant for the current Czech delictual doctrine, as it is necessary to consider from the perspective of wrongfulness (wrongful interference) the absolute and other rights of the injured (values protected by law with absolute or relative relevance), as required by section 2910 of the Czech Civil Code.
Switzerland and its code of obligations, Code des Obligations Suisse, (“COS”) which complements the existing civil code of 1907, shares one characteristic with Italy and Austria in the field of tort: all three countries aspired to create their own approach that combines the best of both dominant continental models – the German and the French. The civil codes of these countries therefore oscillate between the advantages and pitfalls of general tort and pandectist standardisation of torts combined with the conception of relative wrongfulness.
Article 41 (1) of the COS, the introductory provision of the Swiss law of tort, explicitly mentions wrongfulness as a separate prerequisite of liability, but does not go as far as section 823 of the BGB with its full list of protected goods. Indeed, Article 41 states: “Any person who unlawfully causes loss or damage to another, whether wilfully or negligently, is obliged to provide compensation.” In order to prevent too narrow a definition of delictual liability as a result of the required unlawfulness, the Swiss legislature added another paragraph copied from the BGB: “A person who wilfully causes damage to another in an immoral manner is likewise obliged to provide compensation” (Article 41 (2) COS).
Pierre Widmer rightly points out that the topic of wrongfulness, among all other prerequisites of liability, provokes the greatest theoretical controversies, despite the fact that the practical impact remains rather modest. The concept of wrongfulness is, in Widmer’s opinion, a doctrinal achievement and its key purpose in the law of tort is to set the limits of expanding civil liability and to maintain it within reasonable limits. Widmer believes that an uncontrolled and absolute adoption of the neminem laedere principle would result in the unbearable restriction of everyday life. Czech law, having stipulated a general prevention duty (section 2900 OZ), the breach of which gives rise to wrongfulness, is facing the task of defining the above-mentioned limits.
In terms of the concept of wrongfulness, the Swiss federal court made a statement concerning its theoretical basis. It stated in 1989 (and repeatedly in 1992, 1994, and 1995) that both interference in the sphere of the absolute rights of the injured and the pure economic loss arising from breach of relevant protective rule constitute breach of general legal duty. Wrongfulness thus consists in the objective transgression of law and is eliminated only in cases where there is a reason excluding wrongfulness.
Contemporary Swiss doctrine and practice struggle with the issue of wrongfulness primarily in those cases where wrongfulness is not apparent. With certain exceptions and despite a strictly grammatical interpretation in favour of the theory of unlawful conduct (cf. “unlawfully”) the Swiss doctrine tends towards the theory of unlawfulness of result/effect, which brings it closer to the German doctrine.
De lege ferenda, the Swiss legislature in the draft reform of the Swiss law of tort explicitly relies on the concept of wrongfulness as a necessary prerequisite giving rise to liability. Article 41 of the draft reform mentions the basic and leading rule – imputability: “Any person who causes damage to another is obliged to provide compensation, if the act causing damage may be imputed to the person based on law.” The second paragraph of the draft reform provides a demonstrative list of situations in which damage may be imputed. “Unlawfully caused damage may be imputed particularly to: (1) a person whose acts based on fault caused the damage; (2) a person using the services of one or more assistants; (3) a person engaging in an extremely risky activity.”
In addition to imputability, which elsewhere may be perceived as the subjective component of “faute,” the draft stipulates another prerequisite of delictual liability, i.e., wrongfulness, which is further specified in Article 46 (1) of the draft reform: “An act causing damage is wrongful if it wrongfully interferes with a right protected by the legal system” (theory of the unlawfulness of result). Article 46 (2): “If the act causing damage consists in the action (conduct) of a person, then such conduct is wrongful if it is contrary to duty or prohibition imposed by the legal system, to the principle of honesty, or to a contractual obligation.” Through this provision, if approved, the legislature would provide an important aid in interpretating the qualification of wrongfulness.
Although Italy is often classified as falling within the Romance law circle (under the clear influence of French law), in the development of civil law it managed to emancipate itself from the dominance of the French civil code, and its tort law is an original system fluctuating between the French and German models.
The commercialised code of 1942 integrated the concept of wrongfulness explicitly in its central rule of the law of tort. It did so in an original manner, as wrongfulness was closely related (in terms of both terminology and subject matter) to the concept of injury. Article 2043 of the CCI uses the term wrongful injury. “Any acts, intentional or negligent, that caused wrongful injury to another, oblige the person who acted in such manner to provide compensation.”
The attribute was originally used to follow the trend of limiting liability only to interference with rights with absolute relevance (lesione di un diritto assoluto); however, later delictual liability was expanded to cover also interference with interests and values protected by law (lesione di un interesse giuridicamente rilevante). As a result, in Italy tort was to some extent generalised primarily due to the judgments of Italian court of cassation (Corte di Cassazione).
The definition of wrongfulness, even though related to injury, clearly shows a strong connection to wrongful acts/conduct and the clear influence of the German conception. Although the CCI, unlike section 823 of the BGB, did not define the interests protected by law, both Italian doctrine and case law use the interpretation which has a lot in common with the German conception. It finds and infers wrongfulness of conduct from other rules of the legal system. This, however, opened the floodgates of civil liability and relatively soon after passing the new civil code Italian courts seized the opportunity offered by the new law. The courts began to award compensation for injury whenever they stated that there was interference with some goods protected by law, and at the same they identified the goods which contributed to the concept of wrongful injury (danno ingiusto).
The civil law doctrine under the influence of court decisions began referring to Article 2043 of the CCI as the general liability rule, and wrongfulness was more consistently related to injury (i.e., the result) rather than the conduct of the wrongdoer. The liability arises if there is wrongful injury which arises if there is breach of an interest protected by law.
The Italian conception of wrongfulness integrates two conceptual elements. The injury is wrongful if it concerns a legally important and protected interest (danno contra ius) and if at the same time the conduct resulting in the wrongful injury cannot be justified by any of the defences to wrongfulness (danno non iure).
Furthermore, the Italian doctrine brings an innovative approach to interest protected by law. It no longer sees as the basic issue the finding of a specific right within the framework of which the legally significant interest could be located (on a justified basis), but raises the question as to whether such an interest from the perspective of principles of the legal system should be reparable, i.e., whether the interest is legally significant to such an extent that the injury to such interest should be compensated. One example is injury caused by the provision of inaccurate information within liability for damage caused by a product defect (consumer protection).
2.6 The Netherlands
The Dutch Burgerlijk Wetboek (“BW”) has undoubtedly become the source of inspiration for Europe. This code goes its own way, rather eclectically following various modern civil law trends. In comparison to the original Dutch civil code, which used to be classified as a member of the French legal family, the new BW has clearly departed from this starting point by codifying civil law as well as commercial law, and to a considerable extent also consumer law.
The introductory provision of Dutch tort law clearly shows that the legislature tried to connect through legislation three key aspects of liability: unlawfulness, imputability, and fault. Article 6:162 (1) of the BW states: “A person who commits a tortious act (unlawful act) against another person that can be attributed to him must repair the damage that this other person has suffered as a result thereof.”
The interpretation of the concept of unlawfulness is facilitated in the following paragraph where the legislature construes three spheres of unlawfulness. Article 6:162 (2) of the BW says: “As a tortious act is regarded a violation of someone else’s right (entitlement) and an act or omission in violation of a duty imposed by law or of what according to unwritten law has to be regarded as proper social conduct, always as far as there was no justification for this behaviour.”
Imputability [attributability] as a prerequisite of liability is inferred either from the fault of the wrongdoer [tortfeasor] (as a matter of fact in many other regulations fault is only a subjective element of imputability), or from other statutory causes, or can be found through judicial interpretation. Article 6:162 (3) of the BW states: “A tortious act can be attributed to the tortfeasor [the person committing the tortious act] if it results from his fault or from a cause for which he is accountable by virtue of law or generally accepted principles (common opinion).”
On the one hand, unlawfulness is closely related to fault (similarly to the French and Belgian concept of “faute”), on the other hand someone may be found liable for any antisocial conduct irrespective of fault (a combination of the factors of “proper social conduct” – 6:162 (2) and the prevailing “common opinion” – 6:162 (3) BW).
To prevent an undesirable (uncontrollable) expansion of civil liability as a result of this open rule, the Dutch legislature decided to limit the risks through legislation following the example of German tort law. Article 6:163 of the BW says: “There is no obligation to repair the damage on the ground of a tortious act if the violated standard of behaviour does not intend to offer protection against damage as suffered by the injured person.” This reflects the German doctrine and its system of relative wrongfulness (Aquilian relativity) based on special protective legal rules (Schutznorm), from the breach of which wrongfulness is inferred.
3. Summary of the comparative analysis
The above analysis of selected national legal regulations clearly brings to light, among other things, two facts. First, in the analysed tort systems, wrongfulness is regarded an obligatory prerequisite, giving rise to liability for fault. In most of the systems, the requirement of wrongfulness is worded explicitly by the legislature in the basic rules of tort law: Austria (the concept of wrongful acts), Germany (wrongful interference with goods protected by law), Switzerland (unlawfully caused injury), Italy (the concept of wrongful injury), the Netherlands (imputable tortious acts). In other cases, wrongfulness forms an integral part of the concept of “faute” (wrongful acts based on fault) as evidenced by the French (and possibly Belgian) example. With varying intensity, as well as different content requirements and theoretical approaches, all relevant legal systems deal with delictual liability based on conduct or result that conflicts with law (broadly understood) and that gives rise to injury.
Second, despite the generally shared prerequisite of wrongfulness, individual regulations of tort law approach the concept of wrongfulness independently (in an original manner) and assign different meaning to the concept. This results in a not-always-clear definition of the mutual relationship between wrongfulness and fault, possibly in combination with imputability. Wrongful acts based on fault are typically only a subset of acts imputable to the wrongdoer.
While in all legal systems wrongfulness may be to a considerable extent characterised as an objective element of the prerequisites of liability, because it is based on objective grounds (violation of law or interests protected by law, harmful status contrary to law) clearly separated from fault, some legal systems add to the wrongfulness prerequisite itself an emphasis on the subjective element of liability which results in various combinations in relation to the imputability of harmful conduct or result.
Finally, the concept of wrongfulness is also configured using various components of content: conflict with law, breach of statutory duty, breach of contractual obligation, conflict with common opinion and unwritten rules of proper social conduct, conflict with public policy (good morals), and so on. It is necessary to reflect these conclusions in the current discourse on the Czech conception of wrongfulness, imputability, fault, and the standards of due care.
Doc. JUDr. PhDr. DAVID ELISCHER, Ph.D., member of the Civil Law Department, graduated at the Law Faculty of Charles University in 2005, received his doctoral degree (JUDr.) in 2006 and Philosophiae Doctor (Ph.D.) in 2009 from Charles University. In 2008-2009 he was a member of a working group on new Czech civil code by the Legislation Council of the Czech Government. He wrote his dissertation thesis on Wrongfulness and damage as prerequisites of civil responsibility in European legal context. As an associate professor he deals with the law of obligations, particularly with its general part, contracts and civil responsibility (torts). He is author of many articles, chapters in textbooks and monograph on “Donation and its modalities under the new Czech Private Law”. He is a member of the academic group “The Common Core of European Private Law” and contributor to the Juriscope (Centre d’accès aux droits étrangers).
 The author is an associate professor at the Department of Civil Law, Faculty of Law, Charles University in Prague. This paper was written within the framework of the project called “Legal Transactions and Legal Responsibility of Juristic Persons” [Právní jednání a odpovědnost právnických osob] supported by the Czech Science Foundation [Grantová agentura ČR] under registration number 16-22016S.
 English: also “unlawfulness”; Czech: “protiprávnost”; German: “widerrechtlichkeit” or “rechtswidrigkeit”; French: “illicéité” or “illégalité”; Italian: “illiceità” or “illecito”.
 Beran, K. (2013) Předpoklady vzniku právní odpovědnosti (prvky skutkové podstaty). Teória práva. 5th ed. Bratislava: EuroKódex, 2013, pp. 275-293; Švestka, J. in: Knappová, Švestka, Dvořák et al. (2006) Občanské právo hmotné II. 4th ed. Praha: ASPI; Luby, Š. (1958) Prevencia a zodpovednosť v občianskom právu. Bratislava: Obzor; Švestka, J. (1966) Odpovědnost za škodu podle občanského zákoníku. Praha: Academia; Knappová, M. (1968) Povinnost a odpovědnost v občanském právu. Praha: Academia; Lazar, J. et al. (2006) Občianské právo hmotné. 3rd ed. Bratislava: Iuria editia; Fiala, J. et al. (2001) Občanské právo hmotné. 3rd ed., Brno: Doplněk; Brejcha, A. (2000) Odpovědnost v soukromém a veřejném právu. Codex Bohemia 2000 and others.
 For example Lovětínský, V. (2013) Subjektivní odpovědnost a pojem zavinění v české a německé úpravě deliktního práva. Praha, 2013. 90 p. Diploma thesis. Charles University, Faculty of Law, Department of Civil Law. Thesis advisor David Elischer, p. 56 et seq.; Lovětínský, V. (2016) Objektivní měřítko při dovozování nedbalosti a jeho limity. Právní rozhledy 3/2016, p. 77 et seq.; Tichý, L., Hrádek, J. (2012) Deliktní právo v návrhu nového občanského zákoníku. Právní fórum. No. 1, pp. 6-21; Bezouška P. Commentary on Section 2910. In Hulmák, M. et al. (2014) Občanský zákoník VI. Závazkové právo. Zvláštní část (§ 2055–3014). Komentář. 1st ed. Praha: C. H. Beck, p. 1542; Hrádek, J. Commentary on sections 2911 and 2912. In Švestka, J., et al. (2014) Občanský zákoník. Komentář. Svazek VI. Praha: Wolters Kluwer, p. 928.; Koziol, H. Úprava odpovědnosti za škodu v návrhu českého občanského zákoníku z hlediska srovnávací analýzy. In Švestka, J., Dvořák, J., Tichý, L. (eds.) (2008) Sborník statí z diskusních fór o rekodifikaci občanského práva konaných 21. 11. a 5. 12. 2008. Beroun: Eva Rozkotová – IFEC, p. 22.; Melzer, F., Csach K. Commentary on section 5. In Melzer, F., Tégl, P. et al. (2013) Občanský zákoník. Velký komentář. Svazek I. Praha: Leges, p. 96; Janeček, V. (2016) Kauzalita a rozsah odpovědnosti. Jurisprudence. No. 4 (in press).
 Section 823 (1) BGB: “Wer vorsätzlich oder fahrlässig das Leben, den Körper, die Gesundheit, die Freiheit, das Eigentum oder ein sonstiges Recht eines anderen widerrechtlich verletzt, ist dem anderen zum Ersatz des daraus entstehenden Schadens verpflichtet.”
 Section 823 (2) BGB: “Die gleiche Verpflichtung trifft denjenigen, welcher gegen ein den Schutz eines anderen bezweckendes Gesetz verstößt. Ist nach dem Inhalt des Gesetzes ein Verstoß gegen dieses auch ohne Verschulden möglich, so tritt die Ersatzpflicht nur im Falle des Verschuldens ein.”
 Section 826 BGB “Sittenwidrige vorsätzliche Schädigung”: Wer in einer gegen die guten Sitten verstoßenden Weise einem anderen vorsätzlich Schaden zufügt, ist dem anderen zum Ersatz des Schadens verpflichtet.”
 Viney, G. and Jourdain, P. (2006) Les conditions de la responsabilité, 3rd ed., Paris: LGDJ, p. 364
 Cf. on this topic Limpens, J., La Théorie de la Relativité Aquilienne en Droit Comparé. In: Mélanges a René Savatier (1965). Paris: Dalloz, p. 539; Puech, M. (1973) L’illicéité dans la responsabilité civile extra-contractuelle. Paris : LGDJ, marg. 335.
 However, the Austrian legislature is considering limiting liability by introducing the mentioned Aquilian relativity principle in the intended law. Section 1309 of the draft amendment of the ABGB stipulates that compensation must be provided only for such damage that is adequately imputable to the wrongdoer and that falls under the protective purpose of the breached or otherwise affected rule. A similar approach was taken by the Czech legislature (cf. section 2910).
 Limpens, J., Kruithof, R.M. and Meinertzhagen-Limpens, A. Liability for One’s Own Act. International Encyclopedia of Comparative Law, vol. XI, chapter 2, marg. 133-149.
 Artikel 6.163 BW: “Geen verplichting tot schadevergoeding bestaat, wanneer de geschonden norm niet strekt tot bescherming tegen de schade zoals de benadeelde die heeft geleden.”
 Section 2910 OZ: “Škůdce, který vlastním zaviněním poruší povinnost stanovenou zákonem a zasáhne tak do absolutního práva poškozeného, nahradí poškozenému, co tím způsobil. Povinnost k náhradě vznikne i škůdci, který zasáhne do jiného práva poškozeného zaviněným porušením zákonné povinnosti stanovené na ochranu takového práva.”
 Tunc, A. (1953) Les récents développements du droit anglais et américain sur la relation de causalité entre la faute et le dommage dont on doit réparation, RID comp., p. 5, marg. 8 -11; 19-22.
 Puech. (op. cit., note 10, p. 70) considers decisions on the (in)admissibility of civil claims before criminal courts as the only possible application of this theory in French law.
 Viney, G. and Jourdain, P. (2006) Les conditions de la responsabilité. 3rd ed. Paris: LGDJ, marg. 441.
 Viney and Jourdain, op. cit., note 17, p. 366.
 Magnus, U. and Seher, G. Fault under German Law. In: Widmer, P. (ed.). (2005) – Unification of Tort Law: Fault. (PETL). Kluwer Law International, p. 104.
 Fault is then perceived, the same as in the Czech doctrine, as an attitude, i.e., the subjective attitude of the wrongdoer to the wrongful act. See Magnus, Seher. op.cit., note 19, p. 105.
 Zweigert, Kötz, op.cit., pp. 267-268.
 Wagner (2013) Münchener Kommentar zum BGB. 6. Aufl, § 823 Rn. 6.
 Von Bar, CH. (1980) Verkehrspflichten: Richtrliche Gefahrsteuerungsgebote Im Deutschen Deliktsrecht, Heymann, p. 172 et seq.
 An overwhelming majority of such duties, originating from the created standards of due care and consisting generally in a certain degree of vigilance or prudence that must be maintained are typically infringed by an act of omission. In omissive delicts it is difficult to strictly separate the sphere of wrongfulness from fault also because the prerequisite of both is failure to exercise due care. For more on this topic see Magnus, Seher, op. cit., note 19, p. 106; Deutsch, E. (1995) Unerlaubte Handlungen, Schadenersatz, Schmerzensgeld, 3rd ed., marg. 121; Kötz, Wagner. (2001) Deliktsrecht. Luchterhand, 9th ed., p. 24 et seq.
 The code entered into effect on 1st January 1900 as “the fruit of deep, exact, and abstract doctrine of the German pandectist school and the Enlightenment”, as Zweigert and Kötz aphoristically summarised the philosophical and intellectual background of the German civil code in An Introduction to Comparative Law. Part 2: The Institutions of Private Law. Oxford: Oxford Press, 1998.
 Tunc, A. (1989) La Responsabilité civile, 2nd ed. Paris: Economia, p. 13.
 Galand-Carval, S. Fault under the French law. In: Widmer (ed.) (2005) Unification Of Tort Law: Fault (PETL). Kluwer Law International, p. 92.
 The legal rule expressed in this provision was already, at the time of adoption, considered a general maxim of human conduct and furthermore one of the first maxims of society as indicated by the speech of the Civil Code (CC) rapporteur Bertrand De Greuille. In Philippe, B. (2005) Responsabilité civile extracontractuelle. Paris: Litec, p. 173. This principle has recently been awarded the status of a constitutional principle by the Constitutional Council (Conseil Constitutionnel) – see decision no. 9-419 DC, dated 16th November 1999, when it was presented as the necessary consequence of the principle that nobody has the right to harm another person (neminem laedere principle), as it was worded in the Declaration of Rights of Man and of the Citizen of 1789, the basic document of constitutional character. For more information, see Flou, J., Aubert, J-L.-Savaux, E. (2007) Les Obligations part 2, Le Fait Juridique. 12th ed. Paris: Sirey, p. 97.
 Art. 1382 CC: “Tout fait quelconque de l’homme, qui cause à autrui un dommage, oblige celui par la faute duquel il est arrivé à le réparer.”
 Art. 1383 CC: “Chacun est responsable du dommage qu’il a causé non seulement par son fait, mais encore par sa négligence ou par son imprudence.”
 Planiol , M. (1940-42) Traité élémentaire de droit civil. Édition nouvelle refondue par Georges Ripert, avec le concours de Jean Boulanger. Paris: Pichon. Of course, Planiol is not the first author to deal with the concept of “faute”. Before him, many other outstanding experts in civil law discussed the concept such as Aubry, Rau, Josserand, or Limpens.
 Carbonnier, J. (2000) Droit civil, part 4, Les obligations. 22nd ed. Paris: PUF, p. 221.
 “La faute civile est un comportement que l’on peut juger défectueux, soit parce qu’il est inspiré par l’intention de nuire, soit parce qu’il va à l’encontre d’une règle juridique, soit simplement parce qu’il apparait déraisonnable et maladroit.” See Noël Dejean De La Batie et al. (1989) Droit civil français, part VI -2, Responsabilité délictuelle, 8th ed. Paris: Litec, marg. 22.
 “Une atteinte à l’attitude que l’on peut attendre entre les concitoyens normalement conscients et respectueux de l’équilibre qu’exige la vie en société.” See Bénabent, A. (2003) Droit civil, Les obligations. 9th ed. Paris: Montchrestian, p. 361.
 Cf. on this topic Mazeaud, H. A L., Tunc, A. (1970) Traité théorique et pratique de la Responsabilité délictuelle et contractuelle, part II. 6th ed. marg. 395, 439 – 440; Marty, Reynaud. (1988) Les obligations, part I, Les sources. 2nd ed., 1988, marg. 457; Flaur, Aubert, Savaux, op. cit., p. 99.
 Catala, P. (2006) Avant-projet de réforme du droit des obligations et de la prescription, La Documentation française, p. 175.
 In our theory it is the concept of sufficient ability to recognize the dangerousness of one’s acts as an intellectual element of fault, in addition to the volitional component.
 Nevertheless the courts gradually reached a strict and narrow conception of mental disorder that makes a person immune from liability. They inferred, for example, that the liability of a person, otherwise immune from delictual liability, may be established if the condition of the mental disorder could be attributed to previous fault of the person, i.e., if it was the fault of the person that brought about the state of mind devoid of prudence. See the decision of the Court of Cassation, 2nd Civil Division dated 15th December 1965; the decision of the Court of Cassation, 2nd Civil Division dated 28th April 1965.
 For more information, see Mazeaud, Tunc, op. cit., note 23, marg. 456.
 Article 489 (2) CC: “Celui qui a causé un dommage à autrui alors qu’il était sous l’empire d’un trouble mental n’en est pas moins obligé à réparation.”
 Cf. also: Le Tourneau, P. (1971) La Résponsabilité civile des personnes atteintes d’un trouble mental. JCP éd. G, I, 2401; Viney, G. (2017) Réflexion sur l’article 489-2 du Code civil. RTD civ., p. 251 et seq.
 The defences include necessity (l’état de nécessité), self-defence (la légitime défense), performing legal duty or order (l’ordre de la loi et le commandement de l’autorité légitime), consent of the injured (le consent), or acceptance of risk (l’acceptation des risques), and the general category of force majeure (la force majeure).
 It is worth noting that even Randa in his treatise dealing with compensation for damage remarks that the duty to compensate damage ex delicto arises ordinarily only if there is objective wrong (objectives Unrecht) and at the same time subjective wrong (defective will, fault, Verschulden). His understanding of wrongfulness hence corresponds to the French conception effective until the present day. For more information, see Dr. Antonín rytíř Randa: O závazcích k náhradě škody dle rakouského práva občanského s ohledem na cizozemské zákonodárství. 7th ed. Praha: J. Otta, 1912, p. 18.
 Carval mentions as an anecdote that such a separation would make sense if the wrongdoer breached a legal duty imposed by law, i.e., would commit something wrongful (did not respect the traffic lights at a crossroads),because the wrongdoer was ordered to do so by a public authority (a police officer). Then the wrongdoer would be acting wrongfully, but not based on fault. His “faute” would not be established. Galand-Carval, op. cit., note 27, p. 93.
 S. 1294 ABGB: “Der Schade entspringt entweder aus einer widerrechtlichen Handlung, oder Unterlassung eines Andern; oder aus einem Zufalle. Die widerrechtliche Beschädigung wird entweder willkürlich, oder unwillkürlich zugefügt. Die willkürliche Beschädigung aber gründet sich theils in einer bösen Absicht, wenn der Schade mit Wissen und Willen; theils in einem Versehen, wenn er aus schuldbarer Unwissenheit, oder aus Mangel der gehörigen Aufmerksamkeit, oder des gehörigen Fleißes verursacht worden ist. Beydes wird ein Verschulden genannt.”
 This conception is the most distinctive difference between the French tort law and that of the rest of Europe. The French concept of “faute,” which combines the element of wrongfulness and fault, or imputability (l’imputabilité) is dealt with later in this paper.
 Otherwise, the principle that every individual bears the losses in his own sphere applies. It is an extension of the ancient Roman principle “casum sentit dominus”, which is reflected in the first sentence in the provision of section 1311 of the ABGB: Mere coincidence affects the individual in whose property or person it occurred. “Der bloße Zufall trifft denjenigen, in dessen Vermögen oder Person er sich ereignet.”
 See also Bydlinski, F. (1996) System und Prinzipien des Privatrechts. Wien: Springer, p. 185 et seq.
 Koziol, H. Wrongfulness under Austrian Law. In: Koziol, H. (Ed.) (1998) Unification of Tort Law: Wrongfulness. The Hague: Kluwer Law International, pp. 11-23.
 For more on the topic see Koziol, H. (1997) Österreichisches Haftpflichtrecht. Vol. I. 3rd ed. Wien: Manz, p. 4 et seq. A similar conclusion was also reached by Antonín Rytíř Randa: “Acts as such must be objectively wrongful and every interference in the sphere of another is such an act.” See Randa, Dr. Antonín Rytíř (1912) O závazcích k náhradě škody dle rakouského práva občanského s ohledem na cizozemské zákonodárství, 7th ed., Praha: J. Otta, p. 26.
 If someone causes damage to another in necessity, self-defence, or with the consent of the injured, clearly there is a harmful effect in the sphere of the injured and his protected property, however such an act is not wrongful.
 It is possible to mention the example of (immunity from) liability of a minor or of mentally ill persons. It is clear that such persons too may act wrongfully and cause damage (objective criterion), however their acts are without fault. Koziol, op. cit., note 49, p. 14.
 In practice there are in principle three such reasons: either there is no specific person exercising supervision or the supervising person exercised due care and did not commit anything wrong or the reason consists in the insufficient property of the person exercising supervision. For more on this topic see Rouček, F., Sedláček, J. (1935-37) Komentář k československému obecnému zákoníku občanskému a občanské právo platné na Slovensku a v Podkarpatské Rusi. Vol. V. Praha: Linhart, p. 830.
 Czech Civil Code – zákon č. 89/2012 Sb., občanský zákoník.
All three mentioned aspects of wrongfulness originate from and share a common starting point in natural law theories as shown by the original Ehrenzweig theory inferring that wrongfulness consists in acts that are in breach of given duties (legal criterion) and in acts that no human being would commit (moral, ethical criterion). See Ehrenzweig, A. A. (1936) Die Schuldhaftung im Schadensatzrecht, p. 62.
 Cf. section 1311 ABGB: “Der bloße Zufall trifft denjenigen, in dessen Vermögen oder Person er sich ereignet. Hat aber jemand den Zufall durch ein Verschulden veranlaßt; hat er ein Gesetz, das den zufälligen Beschädigungen vorzubeugen sucht, übertreten; oder, sich ohne Not in fremde Geschäfte gemengt; so haftet er für allen Nachteil, welcher außer dem nicht erfolgt wäre.”
 Section 1295 (2) ABGB: “Auch wer in einer gegen die guten Sitten verstoßenden Weise absichtlich Schaden zufügt, ist dafür verantwortlich, jedoch falls dies in Ausübung eines Rechtes geschah, nur dann, wenn die Ausübung des Rechtes offenbar den Zweck hatte, den anderen zu schädigen.”
 The list is not provided anywhere, of course. Such rights and interests are protected by the entire legal order, not exclusively by civil law. In the sphere of civil law, they include primarily property rights and personal rights.
 The outlined issue must be considered in the wider European context. For example, the Principles of European Tort Law (hereinafter „PETL“) embrace this thesis and develop wrongfulness also with respect to this issue. See point 1.2.
 Canaris, C.W. (1991)Grundprobleme des privatrechtlichen Persönlichkeits-schutzes. Wien: Springer, p. 208 et seq.
 The protection of interests should be governed by explicit legal criteria that include in the amendment in particular the importance of the interests, value, distinctiveness, and discernability. The interests of other persons in the free development and exercise of their rights in accordance with the interests of the whole should also be taken into account. The effort to balance the interests of the potential wrongdoer and the injured person is inspired by the Principles of European Tort Law (PETL).
 The existing conception of wrongfulness in case of breach of a peremptory order to act in a certain manner contained in special laws throughout the legal order remains unchanged.
 As opposed to the current regulation, the Austrian legislature attempts to provide a legal definition (section 1295 (2) of the draft amendment of the ABGB) of such acts. Under the draft amendment, acts against good morals are breaches of elementary values of the legal order, acts in clear conflict with the general idea of values, acts with the sole purpose of injuring another, acts of the wrongdoer directed at clearly less important interests than the interests of the injured party. The aspect of the degree of fault (intention) lost its role in these acts. It is obvious that it is also possible to breach elementary values of the legal order through negligent acts.
 Zweigert and Kötz noted that this code had brought into European private law family a new powerful voice representing the peculiarity of Swiss legal thinking. See ZWEIGERT and KÖTZ, op. cit., p. 171
 Art. 41 (1) COS: “Celui qui cause, d’une manière illicite, un dommage à autrui, soit intentionnellement, soit par négligence ou imprudence, est tenu de le réparer.”
 Art. 41 (2) COS: “Celui qui cause intentionnellement un dommage à autrui par des faits contraires aux mœurs est également tenu de le réparer.”
 Widmer, P. The Concept of Unlawfulness – function and relevance under Suisse Law. In: Koziol, op. cit, note 49, p. 115 et seq.
 Section 2900 OZ: “Vyžadují-li to okolnosti případu nebo zvyklosti soukromého života, je každý povinen počínat si při svém konání tak, aby nedošlo k nedůvodné újmě na svobodě, životě, zdraví nebo na vlastnictví jiného.” [If required by the circumstances of the case or the customs of private life, everyone has the duty to act so as to prevent unreasonable injury to freedom, life, health, or to the property of another.]
 From the point of view of Swiss doctrine, the Swiss federal court tends towards an objective conception of wrongfulness which combines both main theories of the German-Austrian school, the theory of unlawfulness of result and the theory of unlawful conduct.
 Decision DFC number 115 from 1989 II 15.
 In Switzerland too the argument is voiced that from the point of view of civil law, it makes no sense to consider the conduct as such without the injury caused. It could be interesting from the point of view of criminal law. See Widmer P. op. cit., note 67, p. 121.
 Available at: http://www.bj.admin.ch/etc/medialib/data/wirtschaft/gesetzgebung/haftpflich.Par.0008.File.tmp/vn-ve-f.pdf [Accessed 15th Aug 2016].
 Art. 41 (1) : “Une personne est tenue de réparer le dommage causé à autrui dans la mesure où le fait dommageable peut lui être imputé en vertu de la loi. (2) : Un dommage résultant d’un fait illicite est imputable notamment:a. A la personne qui l’a causé par son comportement fautif (art. 48); b. A la personne qui recourt à des auxiliaires (art. 49 et 49a); c. A la personne qui exploite une activité spécifiquement dangereuse (art. 50).”
 Art. 46 (1): “Est illicite le fait dommageable qui porte atteinte à un droit protégé par l’ordre juridique. (2): Lorsque le fait dommageable consiste dans le comportement d’une personne, celui-ci est illicite s’il est contraire à une injonction ou à une interdiction de l’ordre juridique, au principe de la bonne foi ou à un devoir contractuel.”
 For example, it offers the possibility to relate wrongfulness to cases of incorrect information provided to another person, to cases of undesirable interference with contractual relationships by third parties, etc.
 The key role in the emancipation of Italian civil law was played by the adoption of a completely new civil code (Codice civile italiano – CCI) in 1942. The original Italian civil code of 1865 was a literal translation of the French CC (article 1151 of the original CCI = article 1382 CC). The peculiarity of the old code lay, among other things, in the fact that even though it was of French origin it was interpreted through the prism of German doctrine which gave rise to many discrepancies. An amusing example of such discrepancy was the interpretation of the above article 1151 CCI, which expressed the principle of general tort, as an ordinary sanction rule for torts regulated by other special rules. For more see Busnelli, F., Comandé, G. Wrongfulness in the Italian legal system. In: Koziol, op. cit., note 49, p. 69 et seq.
 Art. 2043 CCI “Risarcimento per fatto illecito” : Qualunque fatto doloso o colposo, che cagiona ad altri un danno ingiusto, obbliga colui che ha commesso il fatto a risarcire il danno.”
 Gerven, Lever, Larouche. op. cit., p. 6.
 There are two decisions that represent a breakthrough from this perspective: the decision of the Court of Cassation number 2085 dated 4th July 1953 and decision number 1459 dated 29th March 1978.
 Busnelli, Comandé, op. cit., note 76, p. 6.
 CCI explicitly regulates self-defence (article 2044 – Legittima difesa) and necessity (article 2045 – Stato di necessità). Of course, there are also other defences, such as law enforcement, performance of statutory duty, informed consent, lawful use of a weapon, etc.
 In particular Monateri, P. G. Le fonti delle obbligazioni, III, la responsabilità civile. In: Trattato di diritto civile diretto da R. Sacco, Torino: Utet, 1998.
 The doctrine in this case sought legally significant interest worthy of compensation and expressed the criterion as injury caused by breach of confidence of a person who could not recognize the error in the information. For more information, see Busnelli, F. (1991) Itinerari europei nella “terra di nessuno” tra contratto e fatto illecito: la responsabilità da informazioni inesatte, Contratto e impresa, p. 561.
 BW is a result of more than 40 years of very intense research.
In France, current private law is divided into several principal codes: in addition to the Code civil there is the Code de commerce and the Code de consommation. For more information cf. Gerven, Lever, Larouche: op. cit., p. 7.
 Artikel 6:162 (1) BW: “Hij die jegens een ander een onrechtmatige daad pleegt, welke hem kan worden toegerekend, is verplicht de schade die de ander dientengevolge lijdt, te vergoeden.”
 Artikel 6:162 (2) BW: “Als onrechtmatige daad worden aangemerkt een inbreuk op een recht en een doen of nalaten in strijd met een wettelijke plicht of met hetgeen volgens ongeschreven recht in het maatschappelijk verkeer betaamt, een en ander behoudens de aanwezigheid van een rechtvaardigingsgrond.”
 Breach of statutory duty is conceived very broadly in Dutch law as it covers the breach of the rules of BW as well as all legal regulations issued by the state of the Netherlands and its regional governments. It covers also a transgression of various public-law authorisations exercised by public administration. For more see Spier, J. Wrongfulness in the Dutch context. In: Koziol, op. cit., note 49, p. 88 et.seq.
 Artikel 6:162 (3) BW: “Een onrechtmatige daad kan aan de dader worden toegerekend, indien zij te wijten is aan zijn schuld of aan een oorzaak welke krachtens de wet of de in het verkeer geldende opvattingen voor zijn rekening komt.”
 Artikel 6:163 BW: “Geen verplichting tot schadevergoeding bestaat, wanneer de geschonden norm niet strekt tot bescherming tegen de schade zoals de benadeelde die heeft geleden.”