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Advanced Introduction to Private Law

Jan M. Smits

In this Advanced Introduction, one of the world's leading private law scholars takes the reader on an intellectual journey through the different facets and dimensions of the field, from the family home to Kuta Beach and from Thomas Piketty to Nina Hagen.
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Tort law

Jan M. Smits

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differs from criminal law. Although some types of conduct (e.g., assault or drunk driving injuring somebody else) could both qualify as a crime and a tort, the victim does not hold the power to prosecute the suspect and have him fined or imprisoned for the sake of the public good. This is a power exclusively vested in the state. What the victim can do, however, is claim monetary compensation for the loss resulting from the defendant’s behaviour.

This chapter examines some of the recurrent themes of today’s tort law. The central question in this field is when behaviour is tortious and when it is not. It is certainly a fundamental principle of the law that wrongdoers are liable to pay damages to their victims but this leaves open what exactly constitutes a wrongdoing (Section 3.2). In addition, most modern jurisdictions accept that in some well-defined cases it is not even necessary to prove a wrongdoing by the defendant because he is held liable for another reason than being at fault (Section 3.3). Once it is established that the victim can hold the tortfeasor liable, the question emerges as to which aims a claim for damages serves to achieve (Section 3.4) and whether the damages can be said to have been caused by the wrong (Section 3.5). One final critical question is about alternatives to tort law and what its future may bring (Section 3.6).

The essential question of tort law is whether another person can be...

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