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LIABILITY WITHOUT FAULT IN THE
MODERN CIVIL AND COMMON

LAW-IV*

By Kenzo TAKAYANAGI

III

THEORIES OF CAUSATION LIABILITY: ATTEMPTS AT

GENERALIZATION Preliminary. We have seen that both Continental and AngloAmerica law recognizes a variety of exceptions to the rule that liability is a corollary of culpability. The future change in economic and social conditions will probably increase the cases where causation liability is imposed. It is natural, therefore, that jurists in various countries should have tried to work out a principle underlying all these cases. Before going into the discussion of theories of causation liability we had better inquire whether it is worth while to attempt to discover a principle covering these classes of cases.

It may be argued that the so-called causation or non-culpa liability as recognized in the modern law, is based on multifarious grounds different in each particular case. This is probably true, but we can not accede to the view that any systematic survey of the whole field of causation liability is a vain one. $40 We believe that such a survey will not only bring out clearly the contrast between culpa and causation liability, but will lead to the establishment of a few principles if not of a single principle. It will need little argument that the establishment of such principles will be helpful for legislation as well as valuable for juristic science.

It may also be argued by a jurist of a philosophic turn of mind that the method of investigation thus far pursued is erroneous ir. asmuch as it has attempted, on one hand, to discover a basic princi. ple out of the positive law, while, on the other hand, it has resorted to the principle thus found for a critique of the positive law. This is to give a single concept the double function of unifying the contents of the historically established positive law, and of employing it as a ground of justification of the positive law—a feat which is in itself an impossibility.341 This criticism apparently would proceed from the idea that the critique of the positive law must be based on ‘a priori' not on ‘a posteriori' standards. Such criticism of legal methodology is probably unjustifiable, though as a matter of formal logic it seems perfectly plausible; for the positive law may be looked upon not only as an historical product pure and simple, but as an expression, though naturally partial and imperfect, of an 'a priori' juristic ideal. To proceed from the positive law as a guide, if not the only guide, for finding an “a priori' ideal of the law will thus be legitimate. The juristic ideal thus found may properly be used as a critique of the positive law.

*[Concluded from Vol. XVII p. 210. The previous installments of this article will be found in Vol. XVI 163, 268, and Vol. XVII 187.)

340. Degenkolb, Archiv CP, Vol. LXXVI, p. 74 seq.; G. Rümelin, Archiv C P, Vol. LXXXVIII, pp. 302 seq.; Burckhardt, “Revision,” 525; Randa, 13; Pavlicek, 16; Wollmann, “Anwendung d. sec. 829a. Kontraktl. Verletzung," II (1910).

Various attempts have been made to construct a general principle of causation liability in general. Some have tried to revolutionize the whole theory of liability in general, while others only have tried to generalize the basic principles of cases of causation liability. We must notice here that the theory of liability without fault has chiefly concerned itself with what we have termed cases of violation of independent interest. That is still so in the juristic theories in Anglo-America and in France, and that has been so in Germany, Austria, and Switzerland until a very recent date. The review of the theories of causation liability, therefore, in the following paragraphs is largely with regard to the former class of causation liability, and it is only in the last part of this essay that the theory of the latter class of causation liability will be reviewed.

Causation theory. No attempt seems to have been made in England and America to revolutionize the whole theory of civil liability by the so-called causation liability theory. Mr. Salmond in his work on jurisprudence raises the question whether causation liability as a principle is allowable, but only to deny it. He says:

"It may be said, It is clear that in the criminal law liability should in all ordinary cases be based on the existence of 'mens rea.' No man should be punished criminally unless he knew that he was doing wrong, or might have known it by taking care. Inevitable mistake or accident should be a good defense for him. But why should the same principle apply to civil liability? If I do another man harm, why should I not be made liable to pay for it? What does it matter to him whether I did it wilfully or negligently, or by inevitable accident? In either case I have actually done the harm, and therefore should be bound to undo it by paying compensation. For the essential aim of civil proceedings is redress for harm suffered by the plaintiff, not punishment for wrong done by the defendant; therefore the rule of 'mens rea' should be deemed inapplicable."

341. Stammler, “Schuldverhältniss,” 114, Burckhardt, 524; Feder, 5, He goes on to say: "It is clear, however, that this is not the law of England, and it seems equally clear that there is no sufficient reason why it should be.”342

Jeremiah Smith, however, does not express himself to be so confident of the culpability theory of liability. After arguing that the workmen's compensation acts are not the exceptions of the conimon law (i. e. causation liability in case of extraordinary use or conduct), but a reversion to the causation liability of the early law, he raised the question whether the Anglo-American judge ought to repudiate the common law of the 1900s in favor of the common law of the 1400s.343 To this highly interesting question the learned writer does not give any answer.

We thus must turn to Continental sources for the detailed discussion of causation theory of liability.

That the causation of damage is an essential element of civil liability is admitted by every jurist, whatever his theory of liability may be. It is not in the sense, therefore, that the causation of damage by the actor is an essential prerequisite of his liability that we speak of causation theory of liability. Nor is it true that a jurist who recognizes cases of causation liability apart from culpa liability is an advocate of causation theory of liability. The causation theory of liability is one that says that the causation of damage in itself, apart from any other additional element, such as culpa, extra-hazardousness of conduct, etc., should give rise to civil liability.

The causation theory in this sense may be largely divided into three groups. The first group is the most radical one; it seeks to exclude the idea of culpa entirely from the sphere of civil law. The notable examples of this type of theory may be found in Binding, 344 and in very recent times in Neubecker. Karl Binding's main idea is that compensation and punishment are two distinct conceptions , that culpa is a breach of the duty of obedience to the state, and, therefore, may give rise to punishment by the state, but cannot be a ground of liability to the injured person. He says

"One who causes damage to another must reparate it whether he was guilty of fault or not. If he had the misfortune of being in a state of mental aberration when he destroyed another man's property, he is nevertheless the originator of the damage. He injured the rights of another, and the injured person is less without fault than he. The

342. Salmond, “Jurisprudence" (4 ed.), sec. 145, p. 366.
343. Smith, H. L. R., XXVII, 367-8.
344. Binding, "Normen," I.

active agent, and not the victim, must bear the consequences of his act” (pp. 471-2).

He admits, however, that the legislator may from considerations of equity (‘Billigkeit') divide the loss. In a recent work by Neubecker, 846 a causation theory of Binding's type is advocated. He adopts the principle that a person is liable for his conduct (i. e. for his word and work) whether it is legal or illegal. As to legal conduct he is liable if it gives rise to injurious reliance by another person, whatever circumstance (incapacity, error, fraud, coercion) may exist. As to illegal conduct, he is liable if he causes damage whether culpa exists or not, and incapacity or imminent act can be no defense. His discussion is chiefly concerned with what the law ought to be, and is based on general theory, practical necessity, and comparative law. He adds historical reasons in the discussion of delicts.

A second type of causation theory is one that is less radical than the first type, for while it rejects culpa as a ground of liability it recognizes culpa for the delimitation of liability in exceptional cases. Reviews of Sjörgren and Mauczka's belong to this group of causation theory. W. Sjörgren, in his “Zur Lehre von den Formen des Unrechts und den Bestand der Schadenstiftung,” begins with the conception of legal relations (“Einleitung: Ueber den Grund der Rechtsverhältnisses”), and proceeds to differentiate criminal wrong from a civil wrong by saying that the former is conduct in breach of a duty while the latter is a condition (“Zustand') in contravention of a right. (See "Ueber den Unterschied des civilien und kriminalen Unrechts,” pp. 357-395). Then he says in substance that the basis of the liability for compensation consists in the causal connection between the will and the damage. He divides the relation into cases where the will is the cause of the damage ('causa efficiens'), and cases where the will is the object ('causa finalis'). In 'causa efficiens' culpa is a symptom of such causal connection. What he realiy means seems to be that the basis of liability is in the causal connection between the will and the damage. He resorts (1) to culpa, and (2) pursuit of a special interest as a standard for deciding the existence of such causal connection.346

345. Neubecker, "Haftung für Wort und Werk” (1910).

346. The criticisms of his theory are: (1) It is hard to understand why the causal connection between the will and the damage can be the ground of liability. Moreover his use of the terms cause, object, and causal connection is uncommon. (2) To make culpa a mere symptom of causal connection is against the present procedural practice that requires culpa and causal connection to be separately proved. (3) To make the pursuit of special interest a ground of liability is perfectly legitimate, but he does not show in what cases there is the pursuit of a special interest: Rümelin, “Gründe," 20, 30; Mauczka, 5-7; Schey, 658; Voigt, 6.

The fundamental idea of Mauczka's thesis, “Der Rechtsgrund des Schadensersatzes ausserhalb bestehender Rechtsverhältnisse,” is that all damage arises from the conflict of interests between the actor and the victim, and that the solution of the problem concerning the liability of compensation depends on the proper solution of this conflict. He tries to generalize from the positive law the norms by which such just solution can be obtained. The norms347 are as follows: (1) Inferior interest must give way to superior interest. (2) Illegal situations must be prevented, and if they already exist the result must be swept away. In private interests the exclusion of an illegal situation must be accomplished at the request of the injured party. (3) The violation of another's legal interest gives rise to liability for compensation (i. e. recognizes causation theory). (4) Where through the imposition of such liability the enjoyment of a superior interest is made impossible or is considerably interfered with, the liability is excused, provided that the general enjoyment of the injured interest is not subjected to a similar injury through the excuse of liability. (5) One who has given the last cause to the violation of another's interest is not liable for compensation unless the cause is legal cause. (6) The creation, continuance, and exercise of a right is conditioned on the existence of the interest protected by such a right.

He then discusses the basis of each norm, and the degrees of the superiority of various interests and also the application of the norms to the positive rules (esp. Austrian) of causation liability. With regard to the question of culpa as a ground of liability, he takes the position that the causation of damage is enough and culpa need not be made an additional ground. He admits that a person who causes damage to another may be excused because he lacks culpa, but says that it is because the interest of the actor is superior and will become impossible of enjoyment or is considerably interfered with (applying norm (4)). Such cases occur in the pursuit of everyday interests, in which the imposition of causation liability will end in an interference with freedom of action, which is a superior interest. In short, he looks on the causation of damage as the ground of liability, and in exceptional cases only the question is asked why a faultless causation of damage is excused. 848

A third type of causation theory is one that while recognizing 347. “Kollisionsnorm."

348. For criticism of his theory, see Boethke, GruchB, Vol. IL, P. 689 seq.; Ebbecke, ZHR, Vol. LVII, p. 265 seq.; Schey, 658 seq., esp. Anm. 34, 44; Pavlicek, 16 seq.; Randa, 16, 18; Rümelin, "Schadensersatz," 58, Anm. 3, 59, Anm. 3, 60, Anm. i, 2.

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