Tort law or civil liability?

June 24 , 2022 // Specialty

Published in Idealex

Although, during the last decades both notions have been getting closer, deep structural differences persist that determine the way of applying and developing the Law. Negligence and causality come together to explain a concept that is alien to us, but that can be analyzed from our legal institutions. In the legal field, the Anglo-Saxon concept "tort law" does not have a Spanish translation that expresses its complexity, however, if we look for an equivalent, the closest term is that of non-contractual civil liability, which points to the possibility of compensate damages that do not have their origin in the breach of contract.

If we consider that both notions address non-contractual civil liability, what substantive differences do we find between the continental tradition and the Anglo-Saxon world?

structural differences

María Paz Gatica, professor of civil law at the Universidad Austral de Chile, explains that there are structural differences between tort law and civil liability: “In Anglo-Saxon countries, the tort law system is structured as a 'catalogue' of different illicit in which each one presents its own description and requirements”. “After analyzing the context, one has to look for the illegal act that most closely matches the circumstances. It could be similar to criminal law, where we find homicides, robberies, thefts, and in which we have to argue, depending on the case, that the classification is met ”, she adds. Under the above, the illicit or torts present their own technical names and some are linked to honor (libel), privacy (slander) or the physical integrity of people (battery or assault), continues the academic. In the continental system, tort liability is built on a general clause that does not distinguish between different types of civil crimes. In this line, the Chilean legal framework should not adjust to a particular crime: "If it is shown that a person caused damage to another through negligence or fraud, he must be compensated," says Gatica. To understand the phenomenon, we must resort to the evolution of the different branches of common law and continental law. Today there is no technical reason that determines this structural differentiation, however, the natural transformation of the Common Law through the years led to formulating the tort of negligence, which is similar to our general clause. The similarity between civil liability and tort of negligence is found in that the latter points to damage due to negligence and does not describe the conduct itself. The first antecedent of this type of tort comes from the case "The snail in the bottle" or "Donoghue v Stevenson", Scotland (1932), and from here the understanding of negligence in the modern sense begins to develop in Anglo-Saxon jurisprudence. “What the tort of negligence does is cover several cases that did not fit easily into the categorizations of illegal acts that already existed before. Consequently, the doctrine and jurisprudence concentrated various situations with the aim of articulating an 'umbrella tort'”, comments the academic from the Austral University.