Examples II: Germany

German law is one of the great systems in Europe. It is both widely exported and richly discussed in academic and other literature. Germany only became a single country in 1871, and a single body of private law only existed from the Civil Code of 1900. Since the 19th century, the German system of tort liability was based on a complex theoretical system, initially developed by professors. The basic framework has remained largely stable: a person is only liable if his or her act is “unlawful” and he or she was at fault. Liability was ultimately grounded on the infringement of a subjective right or the violation of a statutory provision: only interests that are acknowledged as individual rights are protected comprehensively. The types of rights specifically mentioned in the Code are, for instance, freedom from personal injury and the protection of property. In principle there is no tort liability for purely economic losses such as the inability to make a profit on a contract because a defendant accidentally cut the power cable to your factory: you only compensation for the materials harmed, not the profit you might have made.

Despite this stability of its basic doctrinal structure, the German law of tort has not remained unchanged. The extent of tort responsibility was restricted and expanded again: both, in scope and with regard to the “intensity” of liability, namely the strictness of interpretations of fault. A stable doctrinal frame cannot always protect a legal system against change. However, it is difficult to identify factors explaining such developments. There were roles, but probably only minor ones, for the changing assumptions about the function of tort liability (to compensate, to punish or to do something else) and about the fair distribution of accident risks (e.g. if an accident happens, who is the best person to pay for it, a rich company or a poor consumer?). Equally important was the presence of tensions within the system (e.g. the relationship between saying that the act was unlawfulness and saying the person doing it was at fault) and the complexity, openness or ambiguity of basic concepts. This is especially true for the different notions of fault (culpa levis, levissima and lata), which had to be applied to very different situations − for instance, the liability of children and the mentally handicapped is different to that of ordinary adults. Apparently, this complexity was a suitable tool box for the legal elites (academics and judges) to develop and change the law.