Fault in Tort Law: The Genesis of the Main Approaches

Abstract

In the Russian doctrine of tort law, the discussion of fault as a condition of tort liability is reduced to establishing its content by means of subjective or objective criteria. The first approach considers fault is a special mental attitude of a delinquent to illegal behavior and its consequences. According to the objective approach, fault lies in the failure of a delinquent to take the necessary precautions. However, scientists often abstract from identifying the genesis of these approaches. The article attempts to fill this gap. To achieve the goal, the author uses the historical method and refers primarily to Roman law. It allows, on the one hand, to indicate the causes of fault, on the other hand, to determine its content. The results of the study show that in classical Roman law, fault served as a fine-tuning tool when bringing a person to tort liability: in some cases, it expanded the limits of liability, in others, on the contrary, narrowed its scope. In addition, fault, defined in Roman law primarily by objective criteria, tended to coincide with wrongfulness. Some prerequisites for their separation can only be found in the Corpus Iuris Civilis. Significant changes occurred in the Middle Ages. By the 13th century, due to the influence of canon law, fault acquires a subjective content. This was largely due to the growing role of confession as the main element in the doctrine of the reconciliation of the sinner with God. Thus, the idea of the individual relation of the delinquent to the violation was formed, which contributed to strengthening the subjective approach. The article also reflects the teaching of Thomas Aquinas on human actions, thanks to which the subjective approach got into the studies of postglossators, as well as Hugo Grotius. By the 17th century, as a result of a complex process of interpenetration of legal and religious spheres, the subjective concept of fault finds its way into both criminal and tort law.

Keywords

• fault
• tort law
• canon law
• roman law
• wrongfulness