Editing Tort (section)

====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"/>