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European Tort Law$
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Cees van Dam

Print publication date: 2007

Print ISBN-13: 9780199227679

Published to Oxford Scholarship Online: January 2010

DOI: 10.1093/acprof:oso/9780199227679.001.0001

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Intention and Negligence

Intention and Negligence

(p.184) 8 Intention and Negligence
European Tort Law

Cees van Dam

Oxford University Press

This chapter explores the two aspects of fault liability: intention and negligence, focusing on what these qualifications of personal conduct mean and which role they play in tort law in Europe. Sometimes, particularly in English law, someone can only be liable if he acted intentionally. In most situations, however, liability requires that someone has acted negligently and this is where the gravity of the chapter lies. Courts establish negligence by balancing the defendant's freedom to act and the claimant’s right to be protected against harm. This balancing technique, which results in so-called unwritten rules, is extensively illustrated. Intention in the legal systems of France, Germany, and England is discussed, along with the reasonable person balancing risk and care, magnitude of the risk, precautionary measures, and subjective and objective tests of negligence.

Keywords:   intention, negligence, tort law, Europe, fault liability, France, Germany, England, harm

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