Talk:Tort

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[edit] Torts in civil law?

Does the concept of a tort exist in non-common law systems? If not, the article should mention that torts are a common-law-only concept in the first paragraph. If there's a law of torts in the civil law system, the article should be retitled to make it clear that it is only about torts under common law. Elliotreed 05:01, 6 March 2007 (UTC)

I'm not sure. I vaguely recall that civil law tends to focus on something called the law of obligations, which has significant overlap with both tort and contract. That is, you have obligations which you expressly negotiated (contract) and obligations to all others as a whole (tort). Does anyone know more about civil law? --Coolcaesar 05:36, 7 March 2007 (UTC)
Yes, of course, there is tort everywhere. I suppose if you think about it, if a legal system didn't have tort then chinashop keepers would be pretty powerless against bull owners. The French call a tort délit (or responsabilité civile délictuelle), and the Germans call tort law "Deliktsrecht" or "unerlaubte Handlungen" (unallowed behaviour) - Para. 823 BGB. There is a link for German and Spanish tort law already, which you can see. I'm adding one for the French. Wikidea 07:52, 8 March 2007 (UTC)
I'm currently following a course of comparative tort law at the Leiden University as part of my study. While tort is an english word the concept is definitely not exclusive to common-law countries. Different countries provide different solutions to the problem, some with open systems some closed. For instance the French have a very open system while the English use only nominate torts. English Tort Law could be a subsection of Tort. I think however that the article on English Tort Law could be much expanded and then merit its own page. myfavoritetort 14:17, 22 September 2007 (UTC)

[edit] Not True

"But this cartel was ruled lawful and "nothing more [than] a war of competition waged in the interest of their own trade."

Under US Law, corporations can engage in cartels for the purpose of exports. Ergo, price fixing by a cartel of exporters would be considered legal in the US. I'm sure there are minutae as to why this would be illegal now, but the prima facie claim is inaccurate. —The preceding unsigned comment was added by 68.215.229.210 (talk) 00:11, 27 March 2007 (UTC).

[edit] ALERT SPAM

Please note that the site http://www.infowikis.com/tort.htm is pretending to be a wiki and once you try to edit it it edits wikipedia. Can anyone do something to stop this? 84.229.246.201 08:48, 13 April 2007 (UTC)


[edit] Syntax

"Tort is a legal term in common law jurisdictions that means a civil wrong, and can be a criminal wrong, that is recognized by law as grounds for a lawsuit." This just doesn't make sense, can someone correct it? "and can be" is clearly wrong, but I think 'means a civil wrong that is' could be made a bit more formal. —Preceding unsigned comment added by 129.67.10.62 (talk) 00:30, 8 November 2007 (UTC)

[edit] Contributory negligence

These two ideas directly contradict one another! If it has been replaced by comparative negligence then it is not a complete defense!

In all but four states in the US, if the defendant proves both that the plaintiff/claimant also acted negligently and that this negligence contributed to the loss or damage suffered, this is a complete defence.

This doctrine has been widely criticized as draconian, in that a plaintiff whose fault was comparatively minor might recover nothing from a more egregiously irresponsible defendant. In all but four US states, it has been replaced judicially or legislatively by the doctrine of comparative negligence.

I think what is meant is that contributory negligence is a complete defense in those four states; it no longer exists in the other 46. Cheers! bd2412 T 17:21, 19 December 2007 (UTC)
It is still very unclear and on first reading appears to be contradictory. It could do with being re-written. 78.146.72.108 (talk) 14:08, 26 February 2008 (UTC)


I don't really understand the introduction - could someone more informed please edit that section to make it more understandable to someone without a law degree? Thanks. —Preceding unsigned comment added by 83.104.52.206 (talk) 01:10, 6 January 2008 (UTC)

It's simple. A state can either be contributory negligence, pure comparative negligence, or partial comparative negligence. In pure contributory negligence states, of which there are only 4, it is a complete bar to recovery as an affirmative defense. In Pure comparative negligence states, there is no contributory negligence defense, it does not exist. The amount of your recovery will be reduced by your % of fault. In partial comparative negligence states, up to a certain percentage of fault results in a reduction in recovery (like normal comparative negligence) but over that percentage of fault results in a complete bar to recovery (like contributory). Usually that number is 51%. So think of it like this: what percentage of fault do you have to have to be completely barred from recovering? In contributory negligence it's only 1%. In partial comparative negligence, it's some arbitrary number usually around 51%. In pure comparative negligence, it is 100%. Does that make sense? ⇒SWATJester Son of the Defender 18:19, 26 February 2008 (UTC)

[edit] Introduction

For instance, if somebody throws a ball and it accidentally hits another person in the eye, any costs of ... - is this true? Perhaps if the other person is an innocent bystander, but not if he is participating in a game; he would be aware of the risks, and excuse the offender. In fact in the article Negligence, section Breach of duty, the story about Bolton v. Stone contradicts this very statement. —Preceding unsigned comment added by 81.210.250.49 (talk) 18:16, 26 January 2008 (UTC)


It is not accurate to say most of what is said in the first paragraph. The general rule of accidental injury is that the costs of an accident lie where they fall. (See Holmes, The Common Law, pp. 63-103 in the 1963 Howe ed.). Tort law only redistributes the costs of accidents when one person can prove that another person's conduct reaches the standard that the relevant government actor has set for tort liability. Cf. Id.
However, I don't think the example was in the introduction to be taken literally. I think the purpose of the example was to say, "here's the basic idea of tort law - when does the law step in to say that a person does not have to pay for his own injury, and how?" But it could and should have been much better written to do - as I am trying to do now. Non Curat Lex (talk) 20:10, 13 March 2008 (UTC)

[edit] Classification of product liability as a statutory tort is all wrong

Strict liability for defective products was originally developed as a judge-made rule in California in 1963 (see the Greenman opinion which I added a link to in the product liability article) and is still a common law cause of action originating solely in case law in most U.S. states. It is not a statutory tort in most U.S. states. There are a few U.S. states which expressly adopted the rule by statute (usually by enacting Section 402A of the Restatement Second of Torts into statutory law) but they are a minority. The sweeping classification of product liability as a statutory tort is incorrect.

It sounds like as if this is one of the areas where U.S. judges retain substantially broader lawmaking powers than their UK and Commonwealth counterparts, relative to the legislature. For example, the Supreme Court of California expanded strict liability as recently as 2002 to cover the manufacturers of component parts that are incorporated into mass-produced homes which cause only property damage to the homes. --Coolcaesar (talk) 17:06, 19 December 2007 (UTC)

It was me that put it like that - I was thinking of our situation; we have the Consumer Protection Act 1987, based on a Directive from the European Union, 85/374/EEC; you're right it shouldn't be a sub-section.
I think that you can go back even a bit further than your Greenman case though, and you should probably just tweak your entry in the Product liability article - if you haven't seen it before, look at Escola v. Coca-Cola Bottling Co of Fresno (1944) 150 P 2d 436 - in a case where a bottle of coke explodes in a waitress's hands, Traynor J says "I concur in the judgment, but I believe the manufacturer's negligence should no longer be singled out as the basis of a plaintiff's right to recover in cases like the present one. In my opinion it should now be recognised that a manufacturer incurs an absolute liability when an article that he has placed on the market, knowing that it is to be used without inspection, proves to have a defect that causes injury to human beings."
Feel free to copy that in. Also, if you really want to get into the question of when strict liability started, you can really go quite far back. In La Novelle Natura Brevum by Anthony Fitzherbert, is an example of a smith pricking a horse with a needle, which gives rise to an action because, crucially they said in 1534, "it is the duty of every artificer to exercise his art truly and rightly and as he ought." (94 D) Wikidea 22:19, 19 December 2007 (UTC)
I am well-aware of the Escola concurring opinion, since it is always assigned together with Greenman in all American law schools. However, in 1944, Traynor couldn't get a majority to vote for strict liability, so he had to wait 19 years before he had a court with the right composition and a case with the right facts. Traynor articulated the reasons for strict liability thoroughly in Escola, then turned around and in Greenman cites his own concurrence in Escola as one of the reasons he doesn't need to explain again the reasons for imposing strict liability on the manufacturer. Most practicing attorneys cite Greenman rather than Escola, though, in cases involving product liability, because it's Greenman that was actually joined by a majority of the court and became binding precedent in California (and strongly persuasive precedent in all other states and around the world). --Coolcaesar (talk) 07:42, 27 February 2008 (UTC)
That took you a while to reply! Any chance of editing? :) Wikidea 11:19, 27 February 2008 (UTC)
Well, I will make the necessary revisions if and when I have the time and energy. I am all burned out from too much law and motion practice as well as trial support work this week. And my biggest priority is my long-delayed revision of Attorney at law. --Coolcaesar (talk) 07:21, 29 February 2008 (UTC)

[edit] American Law

Might as well change the heading of this entry to Tort As Applied To The USA. Its not only that it might not apply Internationally it simply doesn't. This is not a criticism of the authors but this really does need to be noted. Really2012back (talk) 06:35, 5 March 2008 (UTC)

Edit: Ok, let me rephrase that - having read a bit further USA/British law. Yes, I know how difficult it is to cover every country but this does seem to be the case here - with some example of EU law. Really2012back (talk) 06:40, 5 March 2008 (UTC)

When somebody starts adding French/German/any other legal system's way of doing things, then it'll be welcomed! Would you like to start? Wikidea 10:07, 5 March 2008 (UTC)

[edit] Editing the Introduction

Does anyone with an ideological or material stake in wikipedia or the content of this article have any objection to me rewriting the introduction? Mainly, I wish to...

(a)replace the existing examples, which are (a) purely hypothetical and (b) conclusory, with a few short sentences taking the facts of an actual case. I feel this will better introduce the reader to the "basic ideas" of tort law, without making it too "law school;"
(b) clean up the way the various "legally-protected interests" and "theories of recovery" are presented
(c) mention the key philosophical issues;

... all of which are disussed in greater depth in the rest of the article and in their own main-articles; You can see a rough idea of my proposal in the edit history. My first proposal involved moving the example from the middle of the first paragraph to the beginning, which is apparently controversial. I am not wedded to that order. I think the current introduction is readible at first, but progressively less organized, and somewhat inaccurate. My proposed changes will make the article more informative, and of course, once their made, anyone else can improve them in any way they see fit! Any objections fromt he community? Non Curat Lex (talk) 19:19, 13 March 2008 (UTC)

This is the edit in question. I think it reads better as it is, without the change. Enigma msg! 19:41, 13 March 2008 (UTC)
Thank you for providing us with that helpful link. Non Curat Lex (talk) 20:07, 13 March 2008 (UTC)

I agree that the intro needs some work. I agree that it needs to start with declarative sentences. See what you can do -- I do suggest you keep it very general and high level, suitable for a neophyte. JohnInDC (talk) 22:53, 13 March 2008 (UTC)

I'd like to see if Enigmaman will accept something along the lines of what I wrote, with declaratives first and with examples second or without introductory examples at all? If example are the hangup, I can go without. One thing there does seem to be a consensus on is that the examples we have now should go. Non Curat Lex (talk) 23:07, 13 March 2008 (UTC).
(ec)This is not about me. Whatever you may think of me, I do have a background in law. However, I choose not to get involved in the project or in the discussions centering around it. My issue was just a very general matter about using edit summaries and building a consensus before overhauling an article. This is common policy. It's also not about what I would accept. What we're dealing with here is what Wikipedia would accept, more specifically, what the editors who concern themselves with this article would accept. If you get support, and you get what you feel is a consensus, go right ahead and make your changes again. I won't stop you. Enigma msg! 00:38, 14 March 2008 (UTC)
Sorry, I may have missed this. As for using edit summaries - I sometimes forget, and it's a bad habit. So are typos. I make a few of those too here and there. I'd like to think that there are more important things. As for "overhauling the article" - that seems a little exaggerated to me, but, fine, let's say that is the case. Are we really presuming that all overhauls are bad?Non Curat Lex (talk) 01:10, 14 March 2008 (UTC)
No one has spoken up on that yet, but people do seem to be hung up on how I opened. So I have proposed a new version that responds to some of my legitimate concerns, hopefully in a less controversial way. Non Curat Lex (talk) 00:37, 14 March 2008 (UTC)
I think there are lots of good, valid changes in the big edit, but it definitely suffers from some significant style issues. Try changing it in smaller sections and keep the general style/feel intact. Unclewalrus (talk) 00:50, 14 March 2008 (UTC)
That's what I will try to do. Otherwise, people may get hung up on the boldness of the opening I proposed, which really wasn't the most important thing. Hopefully I won't be ruffling any more feathers by making an edit so soon. Non Curat Lex (talk) 01:05, 14 March 2008 (UTC)
Good on you Non Curat Lex! It reads well. My rushed attempted to write something before was pretty bad, and I think you've broken it up in a nice way. Furthermore, it isn't bold at all, and I think it looks like you know something, so go for it and be really bold in future. Wikidea 02:59, 15 March 2008 (UTC)

[edit] American vs. British English

I see a lot of changing from American to British to American to British English on this page (and many other law pages in particular). I believe based the spelling of government in this edit that this article was established as being in American English per the WP:Manual of style. Thoughts?--Doug.(talk • contribs) 17:31, 28 March 2008 (UTC)

If Americans spell "government" differently as well, then literacy is even worse across the pond than I thought. :) Wikidea 09:49, 1 April 2008 (UTC)

Ahem, I mean the spelling of offense here. Maybe. What was I thinking? In any case, this is difficult, b/c I don't notice all of the variations even when I know them (it's particularly likely I missed earlier Am. Eng. spellings, since they wouldn't seem at all unusual to me). I didn't look forward of this one and I do note that the one I linked is no longer in the article, though I don't think the MOS makes that a criterion. The fact that this article is entirely too US-centric, however, would suggest that it probably has evolved using Am. Eng. The dialect isn't a problem but the US-centrism certainly is.--Doug.(talk • contribs) 00:57, 2 April 2008 (UTC)