ABSTRACT
It is necessary to consider this concept in greater detail, since (ignoring those cases in which strict liability is imposed) it usually represents the boundary of tortious liability. The English tort of negligence ‘sweeps up’ most cases where the defendant did not act intentionally or recklessly but was still at fault; the French concept of fault under the general principle of liability set out in Article 1382 includes negligence as well as intention and recklessness; and § 823 para 1 of the BGB which is the most general principle of tort liability of German law refers specifically to negligence as well as intention (and the ‘fault’ required for § 823 para 2 to apply includes negligence as well as intention). The ability to distinguish between negligent and non-negligent conduct is therefore fundamental to an understanding of the law of tort in all three countries.
