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A destiny to be interpreted

Awareness of the foregoing considerations prompts us to emphasize the extent to which the absence of a single supreme court for private law matters is bound to affect the effectiveness of a European codification. Considering the lack of a unifying institution, the codifiers might hope to capture uniformity by following the existing consensus, falling back on what our inquiry has labelled the ‘limited common core’ of compensation for pure economic loss.16

Nevertheless, even if the ‘limited common core’ were adopted as a legislative goal, it is worth stressing again that one should not be surprised to find that the different factors shaping liability (such as the various mouldings of the subjective element of intentional harm,17 or the widening or narrowing of the scope of protection attributed to a

16Thus imposing liability, not only in cases of consequential economic loss and of intentionally inflicted harm, but also in some cases of ‘transferred loss’, on some class of professional service providers, and on defendants who have infringed a victim’s right or another interest which is protected statutorily or by the legal system at large (in a continental perspective it is of no matter if the protecting rules are to be found within the national or the European Union legal system: as to the latter source of liability, see above, Part I, Chapter I, fn 16.

17The broad impact of this phenomenon on tort law has made it possible to state as a general proposition ‘the more serious the defendant’s fault, the more direct its consequences’: E. K. Banakas, ‘Liability for Incorrect Financial Information: Theory and Practice in a General Clause System and in a Protected Interests System’, (1999) 7 European Review of Private Law 261, 264. But see the detailed analysis, with numerous references to the historical and comparative literature by P. Cendon, Il dolo nella responsabilità extracontrattuale (Torino, 1976) passim. See also, e.g., J. S. Colyer, A Modern View of the Law of Torts (Pergamon Press, Oxford, 1966), p. 30; H. T. Terry, ‘Proximate Consequences in the Law of Torts’, (1914) 28 Harvard Law Review 10, 15, 26; D. Payne, ‘Foresight and Remoteness in Negligence’, (1962) 25 Modern Law Review 16; W. L. Prosser and W. P. Keeton, On Torts (5th edn, St. Paul, MN, 1984), pp. 205 ff., 296 ff.; E. Deutsch, Fahrlässigkeit und erforderliche Sorgfalt (Köln, 1963), pp. 62 ff., 157 ff., 171;. J. Delyannis,

La notion d’acte illicite considéré en sa qualité d’élément de la faute délictuelle (Paris, 1952),

p. 119; C. Aubry and C. F. Rau, Cours de droit civil français (6th edn, ed. P. Esmein, Paris, 1956), (Eng. trans., St. Paul, MN, 1969, § 444 bis, 445). Some further examples are given in R. Demogue, Traité des obligations, 1, III (Paris, 1923), p. 378; J. B. Ames, (1905) 18 Harvard Law Review 411, 412; W. A. Seavey, ‘Negligence – Subjective or Objective?’, (1927) 41 Harvard Law Review 1, at 13; Restatement of the Law, Torts, 2d, § 298 d; H. De Page, Traité élémentaire de droit civil belge, II (2nd edn, Bruxelles, 1948), pp. 1012 ff.; A. Sourdat,

Traité général de la responsabilité ou de l’action en damages-intérˆets en dehors des contrats, I, 2 (2nd edn, Paris, 1872), pp. 614 ff.; J. J. Honorat, L’idée d’acceptation des risques dans la responsabilité civile (Paris, 1969), passim, esp. pp. 28 ff., 89, 230; G. Viney and P. Jourdain,

Les conditions de la responsabilité (2nd edn, Paris, 1998), pp. 491 ff.; P. Cane, Atiyah’s Accidents, Compensation and the Law (5th edn, London, 1993), pp. 5, 95; H. R. W. Hart and A. Honoré, Causation in the Law (2nd edn, Oxford, 1985), pp. 40 ff., 77, 149 ff., 482 ff.;

F. Chabas, L’influence de la pluralité de causes sur le droit à réparation (Paris, 1967), pp. 92 ff.

statute, and so forth) may give rise to different outcomes in the courts of one European country as compared to another.

All this, once more, shows nothing but the real and general problem faced by tort law, no matter what the ‘façade’ of the code or the purposes of the debate. The problem consists in the setting of technically and socially acceptable boundaries to the shifting of losses incurred by the victim on another party.18 Whenever this shifting is not governed by property law, nor regulated by a contract between these persons, it is up to tort law to provide the solution.19 Consequently – and in spite of the positivistic approach that some may take – the question of whether or not to award compensation to the victim falls to the interpreter charged with making the choice, that is, the judge and the scholar.20

Both of these actors have crucial tasks to perform. The scholar has primarily the role of uncovering whatever specific factors in each individual case are crucial to determining the liability. While it may be acceptable for a judge to make conclusionary statements, no scholar may merely assert that the causation was proximate, that a duty was justified because the parties were in a ‘special relationship’, that the plaintiff had reasonably relied on the defendant or merely that it was ‘just, fair and reasonable’ to impose the liability. Unless given substantive content, these are just labels. In their role of decision-inspirers, scholars are bound to focus explicitly on why and whether that particular causal act was proximate, the relation was special, the reliance was reasonable, and so forth.

Of course, the judge also brings his or her own legal culture to bear. S/he has admired or criticized the judicial precedents, and s/he has learnt the opinions of the given authorities at law school. S/he has both an attitude of self-restraint and a reservoir of legal notions, ‘reactions’ and answers stemming from the legal tradition of the country in which s/he lives.21 This repertoire may also comprise the role that the judiciary plays in the given legal framework: a role entailing a variable degree of respect paid to scholarly opinions, to superior court rulings, to the

18For a comparative survey of the boundaries between the law of unjust enrichment and tort law, see von Bar, Law of Torts (1998), pp. 525 ff.; P. Gallo, ‘Unjust Enrichment. A Comparative Analysis’, (1992) 40 American Journal of Comparative Law 431.

19Cf. E. K. Banakas, ‘Incorrect Financial Information’ 261, 280.

20Cf. C. von Bar, Tort Law at pp. 464 ff.

21From the comparative ‘law and economics’ point of view, see M. Bussani and

U. Mattei, ‘Making the Other Path Efficient. Economic Analysis and Tort Law in Less Developed Countries’, in E. Buscaglia, W. Ratliff and R. Cooter (eds.), The Law and Economics of Development (Greenwich, CT/London, 1997), pp. 149 ff.

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legislature’s prospective or actual choices. Hence, it is no surprise to find that decisions end up being grounded on the balance between the various circumstances of the given case, as qualified, i.e. sized, in legal terms through the overall interpretative culture of the decision-maker.

All of this is possibly true of many fields of law. But within private law, and tort law in particular, it does seem to be the appropriate way to appraise what the making of law entails – thus enabling us to bridge a multi-millennial tradition over the actual answers to present needs. Some might prefer to rephrase the same concept by saying that, at the core of tort law there are policy factors which frame the technical outcomes according to changes in social demands.22 However, the choice of how to phrase the concept is neutral to our purposes, insofar as the legal notions of change23 and tradition are essential to our issue too.

The point is that tort law constantly reveals its interpretative fate, its interpretative mode of existence. As we have seen, the issue of recoverability of pure economic loss does not escape this fate.

22Cf. the point made by J. Stapleton, ‘Tort, Insurance and Ideology’, 820.

23As to the ‘awareness of the time factor’ see above, in this part, chapter 9.