we suggest further on – one should have no illusions that even the clearest policies, whether stated in general clauses or protected interest formulas, will be translated into the ‘law in action’ without undergoing interpretative modification by judges and scholars.

Possible basic scenarios

Our scepticism aside, however, let us try to gain better understanding of the most notable alternatives available to would-be code-drafters. This can be done by depicting the basic legal scenarios that the would-be codifiers may consider. What follows is an attempt to clarify – squaring the future (virtual) landscape with the actual results of our study – the solutions that can be supplied to the issue.

For our purposes, there are two possible frameworks that are worth taking into consideration. The first concerns a tort law system where the code-drafters cast a set of provisions in which they have predetermined (along with the other possible requirements of the cause of action) the types of harm which alone can trigger tort liability. This is a neat option which would re-enact at the European level a general feature to be found in many notable national legal systems. The second scenario considers the adoption of another distinctive feature already present in a good many national regimes: a general clause which, grounded on the requirement of culpable behaviour, leaves scholars and judges free to mark out the contours of tort law recoverability.

These two scenarios will be addressed below, but it should be noted that we will confine our discussion to negligence-based regimes.8 We dispense with any extensive review of pure economic loss stemming

Financial Information: Theory and Practice in a General Clause System and in a Protected Interests System’, (1999) 7 European Review of Private Law 261, at 284–5.

8Certainly, no question would arise if the inspiration for the Code were an unconditional faith in ‘laissez faire’ economics (for an overall assessment of the reverse perspective, see recently D. Howarth, ‘Three Forms of Responsibility: On the Relationships Between Tort Law and the Welfare State’, (2001) 60 CLJ 553). That would imply enactment of a regime in which, no matter what kind of interest has been infringed, only intentionally inflicted harm might give rise to liability. Accordingly the issue of compensation for pure economic loss would largely disappear from the legal debate. This hypothesis is definitely extreme and highly unlikely. It can be just added, however, that – as is well known (see above, Part I, Chapter 1 and Part III, Chapter 9) – such a codistic scenario would entail no disagreement in Europe as to compensation for pure economic loss.

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from strict liability rules, because any solution would depend on the policy options taken up by the codifiers on two issues: (1) the selection of those matters to be covered by strict liability rules; and (2) the choice between a rigid typecast pattern denying the application of strict liability provisions beyond their own original scope, on the one hand, and the possibility of expanding the scope of strict liability provisions by analogy or otherwise, on the other.9 As far as the expansion of strict liability is concerned, one should be aware that national strict liability regimes are often grounded on pieces of legislation (e.g. covering car and railway accidents, or nuclear power accidents or products liability). General policy and technical details may differ considerably across countries, thereby giving rise to difficult problems of co-ordination which might even precede the crucial selection of the harms to be compensated.10

9For a survey of the ongoing debate on all these points see C. von Bar, The Common European Law of Torts (Clarendon Press, Oxford, 1998), p. 10; W. van Gerven, J. Lever and P. Larouche, Tort Law (Hart, Oxford, 2000), pp. 537 ff.

10Moreover, throughout Western legal systems the most important economic burden of strict liability rules normally (though not always, consider, e.g., automobile liability in many countries) rests upon entrepreneurs and enterprises, that is to say, upon subjects and activities for which it is usually impossible to compress the number of accidents that they are obliged to compensate below a given threshold. See generally V. V. Palmer, ‘General Theory of the Inner Structure of Strict Liability – Common Law, Civil Law, Comparative Law’, (1988) 62 Tulane Law Review 1303. Therefore, one could at least urge a harmonization which would enable European entrepreneurs to rationalize the foreseeable cost connected with accidents that they must compensate, and European citizens not to suffer discrimination according to the place where they have suffered the damage. A discrimination which depends not only on the simple presence/absence of a strict liability regime, but also on its operative contents: e.g. the limitation period on bringing the action, or the caps imposed by legal provisions on the minimum and/or the maximum amount of damages to be recovered. Suffice it to consider that, as far as products liability is concerned, Germany, Portugal and Spain have introduced ceilings on the recoverability of loss stemming from personal injuries; or that as regards the threshold above which a loss becomes recoverable there are differences amounting to more than 200 per cent among national provisions on the matter. See G. Howells, ‘Product Liability’, in A. Hartkamp,

M. Hesselink, E. Hondius, C. Joustra and E. du Perron (eds.), Towards a European Civil Code (2nd edn, Ars Aequi Libri, Nijmegen, 1998), pp. 449, 458.

On the other hand, if one considers that a defendant’s ‘pocket’ cannot be bottomless, and if the target is to unify the treatment of European victims, whatever unified regime is adopted, it seems reasonable that it should be linked to a parallel adoption of compulsory third-party insurance and a unification of standard clauses intended to cover (at least) the major risks of enterprise liability. The relevance of, and the debate on, this issue are surveyed by J. Stapleton, ‘Tort, Insurance and Ideology’, (1995) 58 Mod. LR 820 ff.

A code imposing liability on the ground of a rigid typecast set of provisions

The picture would be sufficiently clear if the drafters of the code were to adopt – following the Finnish, German and Swedish, patterns, and from a different perspective the English and Scottish approach as well – some sort of nullum crimen sine lege principle, whereby the recoverable losses would only be those selected by the tort law provisions of the code itself. Once the infliction of pure economic loss had been included in, or excluded from, the ‘crimina’ cast by the code, answers would be forthcoming to most questions on recoverability.

Nevertheless, problematic in this respect would be two issues well known to the reader: (1) the need for a careful balance to be struck among the possible reasons underpinning the exclusion or the inclusion of recoverability, an undertaking which would require consideration of the various treatments made of the different cases of pure economic loss across the legal regimes of the continent; and (2) the relationship between the tort law options to be adopted and the choices made in other fields (especially in contract and property law) as to the remedies available to the victim.

Indeed, to descend from the lofty heights of theoretical speculation to the concrete reality of the ‘law in action’, one should bear in mind what has occurred to the BGB over the years. The restrictive wording of the German code – barring as it does the recovery of pure economic loss – has never prevented German interpreters from adding new rights to the list (as happened with the ‘right of the established and ongoing commercial enterprise’, Recht am eingerichteten und ausgeübten Gewerbebetrieb, included as ‘another right’ under § 823 (1)); from moulding the requirement of an ‘intention contrary to good morals’ (§ 826) in order to absorb a number of grossly negligent conducts; or from obtaining ‘lateral support’ from contractual rules in order to compensate pure economic losses otherwise unrecoverable under tort law rules.11

The risk which any ‘typecast’ choice should be ready to counter is therefore easy to detect: that system may be imposed, but there is no

11Indeed, the German, Austrian and English experiences show that there is no reason to impair privity of contract, enabling a third-party profit from this impairment, unless the given system is forced to do so by a failure of the mechanisms supplied by other legal branches of the law, namely property and contract law. For a similar cultural framework, but with different conclusions reached as to the mutual role of contract and tort rules, see von Bar, Law of Torts (1998), pp. 464 ff. and vol. II (2000), pp. 52–6.

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guarantee it will encounter judges and scholars at the European level who are trained to use the complex machinery of weights and counterweights with which the German system and tradition are endowed.

A tort law codification adopting a ‘general clause’: the selection of recoverable losses as the crucial choice

Somewhat different is the perspective that would arise, were the codifiers to fall back on the ‘general clause’ model found in the ‘liberal’ tort law regimes. In this direction, the core problem is traditionally constituted by the selection – to be made not ex ante by the code, as in the ‘typecast’ regimes, but by the interpreters ex post – of the recoverable losses.

Undeniably, there are many further choices which would confront the drafters of a European code: e.g. the relevance of mental capacity, the possible variety of standards of conduct, the questionable equivalence of intention to gross negligence (culpa lata dolo aequiparatur), and so forth. Undoubtedly, however, when one looks at the ‘liberal’ tort law scenario, one inevitably realises that the fundamental issue at stake is what interests are to be protected by negligence law, and to what extent.

Accordingly, one should bear in mind that whenever fault liability is controlled by general rules or general clauses, the wording of the latter has always openly delegated to scholars and judges the task of defining the scope and the technical devices to be employed in the day- to-day administration of liability issues. Hence, one should be aware of the possible outcomes that might stem from reference to such general clauses in a transnational context.

There is no doubt that open-ended rules of this kind may be of great help in overcoming the obstacles raised by local case law and/or scholars in some systems against the recoverability of pure economic loss. Nonetheless, this choice would also present a substantial risk which appears to be unavoidable. Moreover, this risk must be neutrally assessed, because any stance taken for or against it implies the answer to the broader question of the costs that one intends to reduce by means of the codification.12

12On this subject see, e.g. U. Mattei, ‘The Issue of European Civil Codification and

Legal Scholarship. Biases, Strategies and Developments,’ (1998) 21 Hastings International and Comparative Law Journal 883; M. Bussani, ‘‘‘Integrative” Comparative Law Enterprises’ 83.

The risk is that, by exploiting the broad wording of the clause (such as the famous ‘Any act whatever of man which causes damage to another obliges him by whose fault it occurred to make reparation’: art. 1382 of the French Civil Code), national courts and scholars continue to rely on their legal culture; that is to say, on their traditional repertoire of solutions and technicalities. This may induce the interpreters of some legal systems to fulfil the general clause requirements by referring to a (hidden) protected-interest agenda by means of which they would exclude any newcomer, say, by means of causation or remoteness of damage arguments.13 As a consequence the previous national operative rules would survive through an interpretation of the new ‘written’ rules built upon the old reasonings and arguments.

In other words we could have, on the one hand, ‘liberal’ judges and scholars who promote solutions which keep the door open to the recoverability of pure economic loss, and on the other, ‘conservative’ interpreters who continue to handle the issue with the technical devices to which they are accustomed, exploiting14 any technical requirements of the cause of action that might serve to bar the recovery. Pragmatic regimes, in their turn, could still push their candour to the forefront of the debate, treating the general clause as they currently do with regard to the duty of care or causation requirements. Ultimately, policy arguments would retain their decisive role in making the compensation issue swing back and forth, according to what is felt to be ‘just, fair and reasonable’15 and not widening (too much) the ‘floodgates’ of recoverability.

13Cf. von Bar, Law of Torts (2000), pp. 52–3.

14This scenario would not differ greatly from either the current Austrian situation (notwithstanding § 1295 ABGB) or the one that French, Belgian and Italian interpreters arrived at in the nineteenth century and for some decades of the twentieth, despite their codistic general clauses (art. 1382 French and Belgian Codes, art. 1151 Italian Code of 1865). In the latter countries, indeed, tort liability was imposed only where a particular tort had been committed. The Codes were not read as establishing liability for any damage whatsoever caused through fault; instead: ‘tort in the sense of the civil law is an act by which, intentionally or negligently, the rights of another person are unlawfully injured’. K.-S. Zachariae, Cours de droit civil français, (French trans. C. Aubry and C. Rau from the 5th German edn, 1839), (2nd edn, Bruxelles, 1850), II, § 444. But see also C. Aubry and C. Rau, Cours de droit civil français, IV (4th edn, Paris, 1871), p. 745; M. Planiol, Traité élémentaire de droit civil, II (8th edn, Paris, 1921), pp. 260, 275; F. Laurent, Principes de droit civil, XX (Bruxelles/Paris, 1887),

§ 401, 404. In Italy, e.g. G. Brunetti, Il delitto civile (Firenze, 1906), pp. 215 ff.; G. Giorgi,

Teoria delle obbligazioni nel diritto moderno italiano, vol. V (7th edn, Firenze, 1909), p. 215; and cf. R. Sacco, ‘L’ingiustizia di cui all’art. 2043’, FP, 1960, I, c. 1420 ff.

15See, e.g. Murphy v. Brentwood DC [1991] 1 AC 398 (HL).