Three basic levels of Fault

All the way back in Roman times, the leading lawyers were discussing what fault was and whether it was necessary. They came up with a three-part, definition. This was generally in the area of objective fault, the second of the two types described earlier. The word “culpa” roughly translates as “fault” and is the same in modern Spanish, and the slightly altered “colpa” in modern Italian.

Culpa levissima meant a level of fault that was so slight as to amount to no fault at all. In modern times we call such a level “strict liability” in English. Here there is no real wrong, but there is a fact or action which we are requiring a defendant to compensate. An example would be where you are liable for bringing a potentially dangerous substance onto your land which escapes and causes harm to a neighbour in English law. This came from a case in 1868 called Rylands v Fletcher where the water from a man-made reservoir escaped and flooded a neighbour. No amount of care would have prevented the harm, but it was held that the neighbour should not have to pay to repair the damage, the reservoir owner, albeit blameless, should compensate. In France there is a similar form for someone in control of a thing, under article 1384 of the Code civil. Over the years, this idea has been interpreted broadly: the driver of a car is automatically liable for any damage caused by it, even if he did no wrong at all.

Culpa levis: is like our standard of negligence now. The test is whether the defendant exercised the level of care to be expected of the bonus paterfamilias; the good head of the family. Virtually identical words are used today to describe this standard throughout Europe.

Culpa lata: this is a serious form of fault, akin to “gross negligence” now. It is a term for a level of care well below that to be expected in everyday life.

Of course, these three standards do not tell us what the law should be, they are only classifications of what fault might be. The next stage answered two key questions, and perhaps answering both together was necessary: what is the standard of fault, and is it necessary for tort liability?