Eléments pour une approche diversifiée et évolutive de la causalité dans le droit de la responsabilité civile
(2003)
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- Authors
- Supervisors
- Verheyden-Jeanmart, Nicole
- Abstract
- (en) In the law of torts and in contract law, causation can be defined like the bond which links the fault or no fault event with the damage. It is a component whose judge is held to note the existence, under control of the Supreme Court. For this purpose, the Belgian judge must check that but for the fault or no fault event the damage would not have occurred such as it was carried out. The determination of the causes of a damage is made by application of the sine qua non test and, for the application of this test, the method of difference is generally used. This manner of proceeding does not give satisfaction. It presents various difficulties which led the parties, the judges, the Supreme Court and even the legislator to make admit or to admit, in a form or in another, exceptions. We tried to determine the reasons of the dissatisfaction. Those led us to consider a handing-over in question of the use of the counterfactual method. We think that the causal questions with which the lawyer is confronted are not all of comparable nature. They are of two types. Certain questions relate to the technical sequence of the events; they are of explanatory nature. Others relate to the question of knowing if it is justified or adequate to make support by such person the repair of such situation; the are of attributive nature. Concerning explanatory causation, we think that the judge has to adopt the methods and opinions of the scientists. In the presence of a technical causal uncertainty, we defended the idea of the admission of a responsibility implying a proportional compensation. Concerning attributive causation, it appeared to us that it is in the fault or no fault event and in the damage that the keys must be required to solve the causal enigma. We proposed to frame the attributive causal conception by formulating four criteria of attribution: the sphere of the interests protected by the violated standard, the objective foreseeability of the damage, the economy of the obligation carried out and the inherent damage to the violated standard. Ultimately, we propose a diversified and evolutionary causal approach. Diversified because the causal questions are of two types. Evolutionary because the answer which is given should integrate, progressively with their appearance, the new technical knowledges or should depend on criteria able to hold account of the social and legislative modifications.
- Affiliations
Citations
Durant, I. (2003). Eléments pour une approche diversifiée et évolutive de la causalité dans le droit de la responsabilité civile. https://hdl.handle.net/2078.5/91075