owner who later went bankrupt. One can indeed argue that the lawyer acted negligently, being aware that his actions would most probably affect the heirs, thus building a base for compensation along the lines of the 1987 case. However, such possibility has not yet been tested in court.

III. The case must in the Swedish/Finnish context be understood as making reference to a lawyer (advokat) and not to a notary, since the latter does not exist in its continental form in the Nordic countries.

A leading Swedish scholar733 observes that there is no evident reason for the absence in Sweden of litigation of the kind described here, something which must probably be ascribed to the recourse to extrajudicial settlements.

Editors’ comparative comments

This case is based on circumstances which show that: (1) there is no direct contact between the wrongdoer and the plaintiff; until the will comes to light the grandson may not even know that his grandfather sought legal advice; (2) the economic loss at issue is not even parasitic. Consequently, no possible role can be played in the solution by any ‘reliance’ put by the plaintiff on the defendant’s conduct.

However, none of these factors prevents the large majority of legal systems (a problematic approach is taken only by Sweden and Finland) from awarding damages to the plaintiff. Moreover, most of the countries examined make recovery possible under tort law rules, some of which are special statutes (Austria, which makes recourse to the ‘contract with protective effects for a third person’, is the exception).734

The ultimate and proper reason for this attitude is probably the need to maintain the highest possible public confidence in a certain standard of legal services. The overall outcome is nevertheless relevant to our purposes, because it enables plaintiffs to recover pure economic losses caused by those legal professionals regardless of the general features and traditions upon which the given tort law system is built.735

733Ibid. p. 552, note 82.

734Germany would make recourse to the same concept if an attorney, rather than a notary, had been involved in this case. See above, the German answer, C. von Bar, The Common European Law of Torts (Clarendon Press, Oxford, 1998), p. 521 and fn. 560.

735See our comments on Cases 17 (‘Auditor’s Liability’) and 20 (‘An Anonymous Telephone Call’).

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Case 15: a closed motorway -- the value of time

Case

Due to the fault of a driver, Ned, a truck loaded with chemicals overturned on the motorway at a moment when traffic was particularly heavy. No other vehicle was involved or physically damaged in the accident. However, the authorities were forced to close the motorway for twelve hours. Certain vehicles were trapped in the consequent traffic jam, while many other drivers were warned in time and diverted to side roads. What will be the outcome of a claim brought by truck owner Mario who, because he was blocked on the motorway for five hours, arrived late at his destination and could not make another delivery on the same day? And what are the chances of a claim for compensation by another lorry driver who had to make a detour of some hundreds of kilometres because the motorway was closed, consuming a great deal of petrol and wasting considerable time?

France

I. The truck drivers cannot recover their pure economic loss from Ned under the statutory liability scheme for car accidents, established by the Law no. 85-677 of 5 July 1985.736 They may, however, assert a claim for the loss under articles 1382–83 CC.

II. The statutory liability scheme for car accidents was established because it was thought that the general tort provisions of the Civil Code were not adapted to the massive litigation caused by car accidents.

Within its domain, the new law is exclusive: every time the conditions for its application are fulfilled, it must be applied, instead of the general tort regime of the Civil Code.737 Even when the new law applies, however, it does not necessarily control every question that arises. The general law of tort applies for all matters not covered by the special regime, for example for the evaluation of damages.

The conditions for application of the law require:

a motor vehicle (car, truck, etc);

an accident on a road;

the implication of this vehicle in the damages sustained by the victims; and

a damage.

736Law no. 85–677, 5 juillet 1985.

737Civ. 2, 4 mai 1987, Bull. 1987, II, no. 87; D. 1987, 187, note Groutel.

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The general conclusion, therefore, is that the statute is inapplicable to the facts of Case 15. Professor Viney agrees with this conclusion.742

Though this case falls outside the scope of the Law of 5 July 1985, it would be possible to recover pure economic loss under the general provision, article 1382 CC. In a somewhat analogous case, the City of Marseille was awarded the losses that it sustained when its buses were immobilized in a traffic jam caused by a car accident. The traffic delay diminished the revenues of the city, a loss which the Tribunal de Première Instance (Court of First Instance) considered neither hypothetical nor indirect. Refusing to quash, the Cour de Cassation declared that the lower court had legally justified its decision.743

III. Whether recovery for pure economic loss in these circumstances will be awarded is very difficult to say. As Esmein observed in his note to the above-cited case, French judges have maximum discretion to award or not to award pure economic loss without serious fear of being overruled by the Cour de Cassation. While the juges du fond may declare the damage is ‘direct’, Esmein warns that ‘this affirmation is without significance because the judges declare damages to be direct or indirect in accordance with their desire to award, or not to award, an indemnity’.

Belgium

I. Neither Mario nor the driver who has to make the detour have a claim against Ned since their damages result from the decision of the authorities to close the motorway.

II. The tortfeasor is liable for the damage resulting from its fault. The plaintiff must therefore prove that the damage is the consequence of the defendant’s fault.

In order to appreciate if there is a causal link between the fault and the damage, the Belgian Supreme Court uses a theory known as l’équivalence des conditions. According to this theory, the fault is sufficiently linked to the damage if the plaintiff can prove that the damage would not have occurred, as it occurred, if there had been no fault.744

742See her remarks at p. 110 in J. Spier, The Limits of Expanding Liability (Kluwer, 1998).

743Civ. 2, 28 avril 1965, D. 1965, 777 note Esmein.

744Cass., 12 janvier 1988, Pas., 1988, I, 563; Cass., 15 mai 1990, Pas, 1990, I, 1054; Cass., 23 mai 1990, Pas., 1990, I, 1079; Cass. 23 juin 1990, Pas, 1990, I, 1126; Cass., 8 octobre 1992, Pas., 1992, I, 1124.

According to the Supreme Court, the causal link is interrupted, however, when the damage in question results from another autonomous obligation such as one imposed by a statute or a contract.745

Since the damage claimed by Mario and the driver who had to make a detour result from the authorities’ decision to close the motorway, which is most certainly based on a regulatory obligation, the court will probably reject the claim because the causal link has been interrupted.

Italy

I. Mario can recover damages for the economic loss only if he can provide strong evidence of the link between the fault and the losses. The driver forced to make a detour cannot claim for damages.

II. As to the question of Mario’s recovery of damages, the same situation has been treated in Pirolo,746 where a highway was closed due to a truck that overturned and caught fire because of the driver’s negligence. The court held the truck driver liable because the damage caused to the plaintiff had been directly caused by the former’s negligence.

The driver forced to make a detour cannot claim for damages because the closing of the motorway is due to an act of a public authority, and the Italian court would refuse to assess damages because of public authority intervention. Indeed, case law considers all provisions and acts taken by the public authorities as an occurrence which interrupts the causation link between the defendant’s conduct and the harmful event.747

Spain

I. Neither case law nor specific doctrinal studies provide a solution to this case. However, the most probable result is that none of the drivers could bring an action against Ned.

745Cass., 17 janvier 1938, Pas., I, 8 et 11; Cass., 28 avril 1978, RCJB, 1979, p. 261; Cass., 26 septembre 1979; RGAR, 1982, no. 10431; Cass., 9 mars 1984, RCJB, 1986, p. 651; Cass., 15 mars 1985, Pas., I, 1985, 978; Cass., 28 juin 1984, Pas., 1984, I, 618; Cass., 18 avril 1988, Pas., 1988, I, 943; Cass., 4 octobre 1988, Pas, 1989, I, 118, 15 novembre 1991, I, 282.

746Cass., 16.10.1991, CP 1992, 2, 29.

747Cass., 28 novembre 1998, no. 12093, DR 1999, 47; Trib. Monza, 21 maggio 1986, AC, 1987, 48.

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II. Under Spanish law, the matter may be resolved by arguing that the action taken by the authorities breaks the chain of causation and that, consequently, the owner of the lorry involved in the accident could not be sued. From the point of view of the imputatio facti, damages would not be imputable if we exclude them under the principle of ‘general risks of life’ (allgemeines Lebensrisiko).

Greece

I. The lorry driver’s additional expenses could constitute indemnifiable damages, but this is not certain. On the other hand, Mario’s loss of another current delivery cannot be compensated since it was unforeseeable.

II. Although not corresponding to a specific material or incorporeal property asset, common use of public things is protected by the law within the framework of the right to personality (art. 57 CC). This has been repeatedly confirmed by court decisions.748 Thus, in principle, anyone hindering common use of the highway is liable, since he commits a tort. In view of this, Ned committed a tort, because the law lays down that roads are things in public use (art. 967 CC); and to prevent someone from using them is prohibited (art. 57 CC).749 Thus, under article 914 CC Ned is liable to compensate Mario and the other lorry driver, provided that there is causal link (causation) between their damages and Ned’s tort.

Two criteria have been proposed for testing causation: either the foreseeability of the particular damage,750 or whether the damage relates to the interests protected by the legal rule that the tortfeasor infringed.751 One can readily conclude that the purpose served by the prohibition

748See, for example, AP 684/1973 NoB 22, 175; AP 150/1976 EEN 43, 580; AP 31/1967 NoB 15, 653.

749AP 259/1971, NoB 19, 853; A. Georgiades, General Principles of Civil Law (2nd edn, 1996), p. 127.

750AP 692/1990 NoB 40, 67; AP 1063/90; AP 979/92 ElD 35, 1044; K. Triantaphyllopoulos,

Law of Obligations (Athens, 1935), p. 184; G. Balis, Law of Obligations, General Part

(3rd edn, 1960), p. 100; A. Ligeropoulos (gen. ed.), Interpretation of the Civil Code

(A Commentary) (ErmAK) (1949–1978), arts. 297–300 CC, nr. 39; G. Fourkiotis, Greek Law of Obligations, General Part (1964), p. 318; G. Michaélidès-Nouaros, Law of Obligations

(1959), p. 31, etc.

751A. Georgiades and M. Stathopoulos, Civil Code, Article by Article Commentary, vols. II–IV (1978–1982), Commentary by M. Stathopoulos, arts. 297–298, no. 67, 60–5; P. Sourlas,

Adaequanztheorie und Normzwecklehre bei der Begruendung der Haftung nach § 823 Abs. 1

BGB (1974), pp. 15 ff.

on interference with the use of public things is to protect the foreseeable interests of the people who use the road in one way or another (as passengers or consignees of goods).

Thus, avoiding unnecessary expense and wasted time is the easily presumed interest of somebody using a rapid transit motorway, so the lorry driver may seek compensation from Ned. Nevertheless, the foreseeability of any particular damage of this kind is still very doubtful. Indeed, for example, is it foreseeable to make a detour of additional kilometres, in order to arrive at the lorry’s destination on this particular day? Is it foreseeable that, if the traffic jam had not taken place, the lorry driver might have needed to make a detour anyway, this time due to another jam caused by one of the thousands of accidents that happen every day on the Greek motorways? Furthermore, is it fair to compensate every driver in the case of even the slightest accident or traffic jam?

As to the claim of Mario who could not deliver a shipment on time, the occurrence of the loss and moreover the exact value of the delay of course cannot be easily foreseen. Mario’s loss seems inadequately related to Ned’s fault. His claim for compensation will not succeed.

England

I. Neither Mario, nor any other driver, can recover any damages from Ned or the authorities for their economic losses.

II. Public nuisance: Ned’s act is a common law offence, obstruction of the highway, and as such, also a public nuisance. As already analysed above,752 civil liability may arise in English law from the crime of public nuisance, i.e. an action or omission ‘which obstructs or causes inconvenience or damage to the public in the exercise of rights common to all Her Majesty’s subjects’, and when, as a result, an individual has suffered particular damage over and above the inconvenience or damage to the public at large.753 Economic loss is clearly recoverable under this tort.754 But neither Mario, nor any other driver involved in the upheaval in this case, can show such ‘particular damage, over and above the inconvenience or damage to the public at large’.

Negligence: in the light of Murphy v. Brentwood DC,755 confirming beyond doubt the Court of Appeal approach to negligent financial harm

752Case 6, ‘The Infected Cow’.

753See the review of authorities by Scholl J in Walsh v. Ervin [1952] WLR 361.

754See Tate & Lyle Indus. v. GLC [1983] 1 All ER 1159 (HL).

755[1991] 1 AC 398 (HL).

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in Spartan Steel v. Martin,756 there can be no duty of care in negligence owed to other road users not to cause pure economic loss to them by blocking the highway.

III. The case is another good illustration of the ‘nightmare scenario’, responsible for the greatest objection to liability for economic loss, i.e. that it can be so widespread in amount that no defendant ought to be asked to carry the risk of compensating it.757

Scotland

I. Neither of the lorry drivers would have any chance of recovering damages from Ned for the economic loss that they have suffered.

II. The reasons for this have been clearly set out in various cases considered above. None of the parties has suffered any damage to their property. They are confronted by the general rule of non-liability for secondary economic loss as we have seen developed from Allan v. Barclay, through Reavis v. Clan Line and down to Dynamco. Briefly to reiterate, Lord Migdale in Dynamco held that ‘[t]he law of Scotland has for over a hundred years refused to accept that a claim for financial loss which does not arise directly from damage to the claimant’s property can give rise to a legal claim for damages founded on negligence’.758 In particular circumstances there may be exceptions to the general rule. We have discussed Hedley Byrne, Junior Books, Henderson & Merrett and other cases. As we have seen, however, central to these exceptions are proximity of relationship, assumption of responsibility and concomitant reliance. None of these is present here. We also have the hurdle expounded by Lord Bridge of Harwich in Caparo that ‘the situation should be one in which the court considers it fair, just and reasonable that the court should impose a duty [of care] of a given scope on the one party for the benefit of the other’.759On grounds of public policy one could not imagine that the court would so find a duty of care was reasonable in the circumstances here. In such a case as the present, as Lord Denning MR observed in SCM (UK) Ltd, ‘[t]he risk should be borne by the whole community rather than on one pair of shoulders’.760

III. With intentional delicts the class of potential pursuers will be limited (unless one was dealing with the insane or terrorists); it extends

756[1973] 1 QB 27 (CA).

757More in E. K. Banakas, Tortious Liability for Pure Economic Loss (Hellenic Institute for International and Foreign Law, Athens, 1989), pp. 36 ff.

760 [1971] 1 QB 337 at p. 344D.

to those whom the defender intended to harm. With unintentional but careless conduct the defender is, prima facie, liable to anyone who suffers harm as a result of his careless conduct. The duty of care is used in Scots law as a way to restrict the defender’s potential liability in delict. To hold that Ned has a duty of care in circumstances such as these, short of physical damage, would be to open him up to (as Cardozo CJ so elegantly expressed it) ‘liability in an indeterminate amount for an indeterminate time, to an indeterminate class’.761 It is the policy of the Scottish courts not to open negligent parties up to such wide-ranging claims.

The Netherlands

I. There is no relevant difference between the damage suffered by Mario and the damage suffered by the other truck driver. Having said that, it remains unclear whether either can claim in tort. Dutch law does not provide a clear-cut answer.

II. In a 1917 ruling, the Dutch Supreme Court favoured the following line of reasoning: blocking a public road constitutes a violation of a statutory duty (i.e. the duty laid down in the statutes on road traffic), and whenever someone is in violation of this rule, they can be held liable for subsequent damage.762 However, this decision can no longer be considered to be good law.763 Since 1928, the Dutch Supreme Court has adhered to the relativiteitsleer (better known as the Schutznorm theory),764 which means that an unlawful act as such will not infer liability unless the violated statute or unwritten rule of conduct purports to protect against such damage as was suffered by the injured.765

Applying the relativiteitsleer to this case, one should ask whether the statutory duty to avoid a traffic jam purports to protect against damage caused by the delay and the detour respectively. In answering, one should look into parliamentary proceedings relative to the statute, or – if the parliamentary proceedings contain no mention of the issue – case law that clarifies the intentions of the legislature. The most obvious

761Ultramares Corp’n v. Touche 174 NE 441 (1931) at p. 444; 255 NY 170 (1931) at p. 179.

762HR 30.3.1917, NJ 1917, pp. 502 ff.

763See G. H. Lankhorst, De relativiteit van de onrechtmatige daad (Deventer, 1992), pp. 14 ff. Apparently, contra: Kottenhagen, at p. 342.

764HR 25.5.1928, NJ 1928, pp. 1688 ff.

765See currently art. 6:163 CC, which reads: ‘No obligation to repair damages arises whenever the violated norm does not purport to protect from damage such as suffered by the injured’. Compare Spier, Limits of Expanding Liability, at p. 113.

the uninterrupted flow of traffic. If Ned can be blamed for the accident, then it could well follow that he is liable for the pure economic loss. Seen from this perspective, the 1977 Supreme Court decision is very much like a Pandora’s box.

To conclude, I personally would hesitate to open these floodgates, but the Dutch Supreme Court seems less hesitant. This observation is more or less confirmed by another Supreme Court decision. In the Rijksweg 12 decision,767 the Court allowed a claim in tort for the cost of cleaning up a motorway incurred by the Dutch public authorities as a result of the overturning of a truck loaded with chemicals. Although the cost of cleaning up might not be filed under pure economic loss, the decision shows that the Court tends to draw the circumference of the driver’s duty quite widely.

Germany

I. Mario’s claim: Mario’s claim against Ned will fail because none of Mario’s absolute rights were violated.

Other truck driver’s claim: a driver who has to make a detour has no claim against Ned either.

II. Mario’s claim: Mario will not be able to show that any of the rights listed in § 823 (1) BGB were violated.

Mario will not be able to recover for an infringement of his freedom. It is true that common sense suggests that one who is locked in a traffic jam suffers such an infringement, but the standard interpretation of the term Freiheit in § 823 (1) BGB does not support this. While there is considerable debate about exactly what that term means, the prevailing opinion is that it includes solely the personal ability physically to change location, e.g. to leave a place. Since Mario could have left the scene (including his truck, of course), he still had his freedom in that narrow sense. The freedom to move by a particular means of transportation, such as a car, is not protected in § 823 (1) BGB.768

It is conceivable to think of the confinement of the truck as a violation of Mario’s property right. The Bundesgerichtshof has held that the loss of the use of a ship amounted to such a violation where a barge was locked

767HR 19.10.1975, NJ 1976, no. 280; compare HR 26.5.1978, NJ 1978, no. 615.

768See E. Deutsch, Unerlaubte Handlungen, Schadensersatz und Schmerzensgeld (3rd edn, 1995), Rd.-Nr. 183; J. Eckert, ‘Der Begriff der Freiheit im Recht der unerlaubten Handlungen’, JuS 1994, 625–31. The ‘freedom’ of economic activity is not protected either, RGZ 100, 213, at 214 (1920).

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into a canal for several months.769 Yet, the Court has also decided that the owner of land whose access by public road was blocked for a few hours has no claim for violation of property right.770 The present case is much closer to the second scenario than to the first. As a result, it is almost certain that the courts would reject a claim for violation of property rights.

Mario’s right of the ‘established and ongoing commercial enterprise’ (if Mario’s truck was his business) was not violated because the interference was not directed at, or specifically related to, the business as such.771 Instead, the accident affected all users of the road alike.

The right to use public highways is not recognized as ‘another right’ protected by § 823 (1) BGB.772

There is no claim either under § 823 (2), i.e. because of the violation of protective statute. Even if Ned had violated traffic rules, these rules are not intended to protect other road users against delays caused by traffic jams.773

Other tort provisions in the Civil Code do not apply.

Mario could try to sue Ned under the Road Traffic Act 1952 (as amended 25 July 2002 – Straßenverkehrsgesetz) which provides for liability of the vehicle owner (art. 7: quasi-strict liability) and driver (liability for negligence with reversed burden of proof). Such a claim would fail as well because this liability covers only personal injury or death and physical harm to property.

Other truck driver’s claim: there is no basis for the other truck driver’s claim whatsoever. A violation of property or other rights is completely out of the question because the driver has not lost the use of the truck.774

III. The rejection of claims in cases such as the present is strongly motivated by the fear of an undue expansion of liability. It is not at all inconceivable to conclude that a person caught in a traffic jam with his vehicle suffers a loss of freedom, and that damages resulting from such a loss of freedom are covered by § 823 (1) BGB. But such a decision would lead to an almost boundless liability of everyone who causes an accident on Germany’s crowded roads, and it would unleash a flood of lawsuits. Thus, the Bundesgerichtshof has indicated (although somewhat vaguely) that the loss of the use of public highways or a short-term blockage of

access is part of the general risk that everyone must bear.775 Similar arguments can be found in the academic literature.776

Austria

I. Mario has no claim against Ned because there is no absolute right which Ned violated by his negligent behaviour.

Other lorry drivers do not have a claim against Ned for the same reasons.

II. Mario’s claim: the infringement of Mario’s right to personal freedom as acknowledged by articles 16 and 1329 ABGB is not strong enough to entitle him to sue Ned. Under Austrian law it makes a difference if Mario was intentionally blocked, or if he only became stuck in a negligently caused traffic jam. If Ned had intentionally interfered with Mario’s right to personal freedom, e.g. by planning the traffic breakdown in order to prevent him from being elsewhere, such behaviour would probably be sufficient for the success of a claim against Ned.

Similar considerations will govern the question under articles 1331 and 1332 ABGB777 as to whether Ned might be liable for the financial loss which Mario sustained when the use of his property became temporarily impossible. In the context of damages resulting from demonstrations, the OGH has remarked in obiter dictum that the mere fact that a person is impeded in the use of their property is not sufficient grounds for a compensation claim.778

There is no basis under Austrian law to apply the genuine German doctrine of ‘violation of the right of the established and ongoing commercial enterprise’ (assuming Mario’s truck was his business).779

There is also no available claim based on article 1311 ABGB (violation of a protective statute). Statutory traffic rules may qualify as statutes to protect traffic victims against financial loss. It is generally accepted,

775BGH NJW 1977, 2264, at 2266.

776J. von Staudinger, Kommentar zum Bürgerlichen Gesetzbuch (12th edn, 1986), § 823 Rd.-Nr. 48.

777§ 1331 ABGB: ‘If a person’s property is injured intentionally or by the gross negligence of another, he is entitled to demand any lost profits and, if the damage has been caused by an act forbidden by criminal law or by an act of wantonness and malice, the particular value of the property damaged.’

778Cf. OGH JBl 1995, 658 (blocked gateway); consenting note by Karollus-Brunner, JBl 1995, 662; see also P. Rummel, ‘Wettbewerb durch Umweltschutz – Überlegungen zum Mißbrauch subjektiver öffentlicher Rechte’, RZ 1993, 36.

779Cf. H. Koziol, Österreichisches Haftpf lichtrecht, vol. II (2nd edn, Vienna, 1984), p. 39.

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however, that these rules do not protect road users against delays caused by traffic jams.

Other lorry drivers’ claims: as none of the drivers has lost his truck or the use of his truck, there is no violation of property or other absolute rights protected by tort rules.

III. If Ned’s accident was not caused by his or anyone else’s fault, the Statute on the Liability of Railways and Automobiles 1959,780 which subjects railways and most motor traffic on roads to a regime of strict liability, may apply. However, this statute does not provide for compensation of pure economic loss.781 This is considered to be a consequence of the theory that, under the rules of fault-based delictual liability, financial interests should not be protected to the same extent as they are under contract law. Proceeding on this basic assumption, the policy is even clearer that recoverability of pure economic loss should be denied whenever liability is based on a less convincing ground for liability, such as the mere fact that an activity creates a high danger that damage may occur. Moreover, the particular purpose and specific policy background of this statutory regime of strict liability do not suggest that pure financial losses are protected.

This hypothetical case shows that different types of invasions to an absolutely protected right such as property do not entail the same legal consequences. The mere impeding of the use of property is not the same as the direct violation of the property right. In particular, this is true when the impediment is shortlived: such inconveniences have to be borne as a rule by the owner.

The same is true with deprivation of liberty. However, a combination of the two may occur which proves sufficient to ground liability: if the interests for which protection is sought are of minor importance in a given case, the wrong must be more weighty to justify the imposition of liability on the person who caused the violation.

Portugal

I. Neither the owner of the vehicle held up for five hours, nor the driver forced to make a lengthy diversion could seek compensation from the

780‘Eisenbahn-Kraftfahrzeug-Haftpflichtgesetz’ (EKHG) BGBl 1959/48.

781See § 1 EKHG; the same is true with other strict liability statutes: cf. § 1a RHG, § 146 LFG, §§ 160, 163 MinRoG, § 10 RohrlG, § 47 ForstG.

driver (or the owner) of the transporter of chemicals that overturned on the motorway through the driver’s fault, causing the motorway to be closed for twelve hours.782

II. Technically, the most direct way to justify refusing compensation consists of an argument that there has been no violation of subjective rights or of a legal provision intended to protect the particular type of interests affected (art. 483/1).

It may be a matter for discussion whether there has been violation of a right of ownership (of the owners of the vehicles that are prevented from circulating for a prolonged period), or of a personality right (freedom of movement).

The distinction between the violation of a right and a simple disturbance in the exercise of it is never clear and it should be acknowledged that, on occasion, it can constitute a kind of technical trick to achieve (or justify) the preferred de iure condendo solution.

With respect to the non-application of the provisions that establish a liability through risk (arts. 503 ff.), this is related to the fact that the damage in question does not fall within the protective purpose of the rule.

III. Independently of the legal grounds, we believe that the solution would be consensual in Portuguese law. In the final analysis, we are dealing with accepting the idea that the risk of losing time (or other inconveniences) owing to traffic conditions is inherent in modern society. Such risks must be borne by every citizen, even when its occurrence is due to the negligence of an individual, rather than an accidental circumstance.

Sweden and Finland

I.None of the prospective claimants will get compensation.

II. Here, the main obstacle is again the general principle of the law of torts that limits compensation of economic losses to losses suffered by those subjects who have been the direct victims of a personal injury or property damage. ‘Third parties’ are in principle not entitled to compensation. Here indeed, strictly speaking, the only ‘property damage’ has been suffered by the defendant.

782This question is similar to hypothesis 3 of the Tilburg Group. See the Portuguese report and the comparative law report in Spier, Limits of Expanding Liability, at pp. 177 and 51 ff., respectively.