Historical Development of Fault

The path leading to the proclamation of a common general principle of fault was rather tortuous in historical terms. The Roman law sources did not make a general principle plausible. The medieval revival of the Roman law, scattered customary and positive laws of great local importance provided regimes of liability without fault in a vast number of cases. They too constituted obstacles to the adoption of a general principle of liability for fault outside the pure realm of natural law that provided the foundations of the code provisions on tort liability.

In the history of continental Europe, the emergence of a general principle of liability based on fault is commonly ascribed to the natural law writers of the seventeenth and eighteenth centuries. Natural law is the idea that there is core truth and value in law which is set by nature, i.e. above mankind. This could be theological or not, but above any individual state or king. Famous writers have been Thomas Aquinas, Thomas Hobbes, Hugo Grotius, Samuel von Pufendorf and John Locke. Their works inspired the first codes of law of lasting importance enacted between the eighteenth century and the nineteenth century – the Prussian Allgemeines Landrecht (1796), the French Code civil (1804), the Austrian Civil Code (1811) – and posed the basis of the dominance of that principle in nineteenth century legal theory. Of these, the most influential has been the French. Article 1382: "Any loss caused to a person through the behaviour of another must be compensated by the person whose fault it was that the loss occurred.”

We then come to how much this generalisation was taken up in other countries in Europe.