Private Law Theory

ABSTRACT
The distinction between intention and negligence is – in contrast to criminal law – only of limited significance in the law of delict because negligence on the part of the tortfeasor generally suffices for liability to arise. In light of this dissimilarity between private and criminal law, the article critically analyses in which regard, if at all, intention (compared to negligence) should have a distinct role in the law of tort. Six possible fields of differentiation (protected interests and rights, causation, contributory fault, exclusion clauses, set-offs/rights of retention as well as periods of prescription) are examined. The approach of the article is comparative in nature, taking the law of various, mostly European, jurisdictions into account. Ultimately, three functions of intention are identified: Firstly, it is only a factor in the consistent application of the already existing rules, which, nonetheless, leads to results which deviate from those for negligence (this is true for (normative) causation and contributory fault). Secondly, intention serves as a consideration while balancing the interests of tortfeasors and aggrieved parties to determine what the substance of the law of delict should be (this is true for protected interests and rights as well as periods of prescription). Thirdly, intention has a distinct role because there is a specific justification for it which only applies to it but not to negligence (this is true for exclusion clauses and set-offs/rights of retention).

€ (Kluwer)

Leonard Lusznat, The Role of Intention in the Law of Delict and Tort, European Review of Private Law, volume 32, issue 4 [pre-publication] (2024).