Editing Tort (section)

===Germany===
====Outline====
German tort law is codified in Book 2 of the [[Bürgerliches Gesetzbuch]] (BGB), which provides for [[damages]] in circumstances in which there is no contractual relationship between the plaintiff and the defendant. German tort law protects plaintiffs against violations of:
* Legal interests ({{langx|de|Rechtsgut|link=yes}}, literally: "[[legal good]]"): A legal interest is a good or interest protected by the legal system.<ref>[http://www.duden.de/rechtschreibung/Rechtsgut ''Rechtsgut, das''] duden.de, retrieved 29 August 2017</ref> Legal interests protected by tort are in particular life, the body, health, freedom and property.<ref>{{Cite web|url=https://www.gesetze-im-internet.de/bgb/__823.html|title=§ 823 BGB - Einzelnorm|website=www.gesetze-im-internet.de}}</ref> The type and number of protected legal interests are not conclusively defined and, where multiple such interests are at odds, they must be weighed against each other (e.g. human dignity versus freedom of speech in the context of the tort of [[defamation]]).
* Absolute rights ({{langx|de|Absolutes Recht|link=yes}}): Absolute rights provide a beneficiary with an exclusive, legally protected right to over a specific legal position (e.g. [[property]] rights), which everyone must respect.<ref>Brox, Hans and Walker, Wolf-Dietrich: ''Allgemeiner Teil des BGB.'' 42. Auflage. München 2018, S. 281 f.</ref>
* Protective laws ({{langx|de|Schutzgesetz|link=yes}}): In essence, a protective law is a provision of a written law which the [[Bundestag]] or a [[Landtag]] intended to protect individuals from some category of harm (e.g. a product liability or consumer protection law).

There are three distinct categories of liability recognised under the BGB: liability for "culpable injustice", "injustice in rebuttable presumed liability", and strict liability arising from "endangerment". Liability for culpable injustice, the default position in German tort law, is where an individual directly violates another person's legal interest or absolute right either intentionally or negligently. Rebuttable presumed liability is the principle that an individual is [[vicarious liability|vicariously liable]] where a legal interest or absolute right is violated by another person (e.g. an agent, child/other person in their custody), where such a violation is committed by an animal, or where such a violation takes place on the first individual's property. Strict liability for endangerment exists with regard to violations of protective laws (e.g. product liability, environmental laws, motor vehicle regulations) and in cases in which an individual is especially vulnerable due to the nature of a circumstance (e.g. medical or legal malpractice).

The BGB makes specific provisions for several different categories of torts pertaining to damages available, including damages and injunctions to prevent the commission of a tortious act. These provisions are supplemented by specific legislation, particularly protective laws. With regard to product liability, protective laws implementing European Union directives provide for a system of strict liability similar to that adopted in many common law jurisdictions; however, German tort law does not recognise class action lawsuits or the notion of [[mass tort]]s.<ref>{{Cite web|title=The Class Actions Law Review: Germany|first=Henning|last=Bälz|url=https://thelawreviews.co.uk/title/the-class-actions-law-review/germany#:~:text=Class%20actions%20in%20a%20formal,to%20German%20civil%20law%20procedure.|website=The Law Reviews|date=21 April 2022|access-date=26 May 2022|url-access=subscription|archive-date=27 May 2022|archive-url=https://web.archive.org/web/20220527020445/https://thelawreviews.co.uk/title/the-class-actions-law-review/germany#:~:text=Class%20actions%20in%20a%20formal,to%20German%20civil%20law%20procedure.|url-status=dead}}</ref> German tort law additionally does not permit punitive damages.

====Jurisprudence====

In terms of tort liability, the BGB represents a school of legal jurisprudence – the [[pandectists]] – heavily shaped by 19th century [[classical liberalism]] and, accordingly, places great emphasis on minimising impairment to individual freedom of action.<ref name=":8">''L'influence du droit allemand sur la responsabilité civile française''– Oliver Berg – Revue Trimestrielle de Droit civil, 2006, p.53</ref> In this regard, it can be contrasted with the [[Napoleonic Code]], which was authored a century earlier and placed greater emphasis on the protection of individuals from the actions of others. As the two codes form the basis for private law in a variety of jurisdictions across the world, with one or the other being substantially copied by most civil law jurisdictions on every continent, the differences underpinning the BGB and the Napoleonic Code represent a major schism in jurisprudence between civil law jurisdictions. Since 1900, both the judges and German legislators decisively rejected the idea of a general principle of civil liability commonly found in civil codes inspired by the Napoleonic Code as well as in those of [[#Japan|Japan]] and the [[#China|Republic of China]] which are otherwise based primarily on the same [[pandectist]] school as the BGB and that of the [[#Philippines|Philippines]].<ref>See BGH, 25 janv. 1971, BGHZ55, 229, 234.</ref>

One distinguishing feature of German law is the extent to which liability depends not just on the damage caused but on the action of the purported tortfeasor.<ref name=":8"/> Sometimes it is enough to prove negligence, while in other cases a more serious fault is required.<ref name=":8"/> Thus, anyone who unlawfully interferes, intentionally or through recklessness, with the life, body, health, freedom or property of others is liable to others to repair the resulting damage.<ref name=":8"/> On the other hand, less protection is granted in the event of damage to purely intangible interests, nicht-gegenständliche Interessen, that is to say when the victim only suffers purely economic or moral damage. Such is the case of a pecuniary loss caused by erroneous information or vexatious remarks. Apart from a rather marginal hypothesis provided for by article § 823 paragraph 2(9), the recourse will then suppose an intentional fault.<ref name=":8"/> The protection thus granted has proven to be incomplete.<ref name=":8"/> Consequently, over the course of the 20th century, case law has extended liability for recklessness to other cases, in particular by admitting that § 823 paragraph 1 BGB aims to protect a "general right to personality" and a "right to the company" or by recognising, alongside tort liability, the theory of [[culpa in contrahendo]].<ref name=":8"/> Although Boris Starck makes no express reference to it, there are serious reasons to think that this right strongly inspired him in his elaboration of the theory of the guarantee.<ref name=":8"/> First, it takes up the idea of considering the event giving rise to the right to compensation, starting from the nature of the interest affected. Moreover, there is an astonishing resemblance between the respective formulations: § 823 paragraph 1 BGB is supposed to protect the integrity of property and persons by granting protection "to life, body, health, freedom, to property". Starck, for his part, claims "a right to life, to bodily integrity and to the material integrity of the objects belonging to us".<ref name=":8"/> Finally, on both sides, it is with the same arguments, such as the need to protect the freedom to act, that a less intense protection of purely economic and moral interests is justified. Nevertheless, Boris Starck departs from the German model by raising the protection of physical integrity by a notch, believing that the only breach here generates a right to compensation.<ref name=":8"/>