Liability without Fault – an Exception to the General Rule of Private Law
DOI:
https://doi.org/10.60131/jlaw.2.2023.7695Keywords:
Fault, Strict Liability, Impossibility of Performance, Default, Increased Risk, Liability Insurance.Abstract
The principle of Fault liability is a general rule for the substantive branch of private law - civil law, and liability without fault - the so-called Strict liability, as it is referred to in Anglo-American law, is an exception to this rule. Both the provisions of the national and unified law provide for the exemption of releasing the participant in civil circulation from liability due to natural or social circumstances because it would have been impossible to have foreseen or avoided the incident if he had shown the necessary foresight and diligence because of the extraordinary and insurmountable nature of this circumstance. It should be noted that such circumstances in the scope of liability without fault cannot ensure the release of a person from responsibility. A creditor participating in a legal relationship, in the event of a delay in receiving performance, or a debtor because of exceeding the deadline to fulfill the obligation, regardless of their fault, bears the risk of performance of the obligation. Also, the owner of the source of increased danger is responsible for the damage caused to another person by the object or activity considered as a source of danger, regardless of his fault. Civil liability insurance is considered as a deterrent to no-fault liability, regarded as an injustice allowed by law. On the one hand, it socializes the risk for the person liable for the damage, on the other hand, it is found as a means of balancing the interests of the victim.
References
Bachiashvili V., Secondary requirements taking into account the peculiarity of the mixed type of contract, dissertation for obtaining the academic degree of Doctor of Law, TSU, Tbilisi, 2019, 159 (in Georgian).
Basic provisions of European contract law, translated by Z. Chechelashvili, Collection of Georgian private law, 2004, 255 (in Georgian).
Begiashvili N., Impossibility of performing the obligation (comparative-legal analysis), Journ."Sarchevi", No. 1(2), 2011, 18 (in Georgian).
Begiashvili N., The relationship between the transferring of risk and the performance of obligations (on the example of contracts concluded on the movable property), Tbilisi, 2021, 105 (in Georgian).
Berekashvili D., Todua M., Chachava S., Dakhmishvili Z., Methodology of case resolution in civil law, Tbilisi, 2015, 56, 58 (in Georgian).
Bichia M., Legal Obligatory Relations, Vol., 2016, 307 (in Georgian).
Bushev A.Yu., Makarova O.A., Popondopulo V.F., Commercial law of foreign countries, M., St. Petersburg, 2003,125 (in Russian).
Chanturia L., Corporate management and the liability of managers in corporate law, Tbilisi, 2006, 373 (in Georgian).
Chitashvili N., Adaptation of the contract to the changed circumstances as a legal consequence of Hardship, "Journal of Law", No. 1, 2014, 206 (in Georgian).
Chitashvili N., Hardship and Impossibility of performance arising from changed circumstances, Journal. "Journal of Law," No. 2, 2011, 153 (in Georgian).
Chitashvili N., Impact of changed circumstances on the performance of obligations and possible secondary remedies of the parties (comparative analysis), Tbilisi, 2015, 52 (in Georgian).
Chitashvili N., Legal prerequisites of Hardship in performance and force majeure, jubilee collection dedicated to the 60th anniversary of Professor Besarion Zoidze, ed. Chanturia L., Burduli I., Tbilisi, 2014, 326, 338 (in Georgian).
Chokheli N., Kereselidze D., The issue of civil liability for damage caused by activities dangerous to the environment in Georgian legislation, Journ. "Review of Georgian Law", first-second quarter, 2000, 84 (in Georgian).
Civil law, Ed. Sergeeva A.P., Tolstogo Yu.K., 4th ed., vol. 3, M., 2005, 55 (in Russian).
Civil Law, I, 2nd ed. Under. ed. Sukhanova E.A., M., 2003, 450, 453 (in Russian).
Commentary on the Civil Code of the Russian Federation, part 1, edited by Sadikov O.N., M., 1997, 397 (in Russian).
Dozhdev D.V., Roman private law, M., 2002, 494, 501 (in Russian).
Fleishitz E.A., Obligation from causing harm and from unjust enrichment, M., 1951,132 (in Russian).
Gabichvadze Sh., Civil legal regulation of cargo and passenger transportation by air transport, Tbilisi, 2013, 18, 187 (in Georgian).
Georgian and German law, Tbilisi, 2016, 114-115, 168 (in Georgian).
Georgian Law", I-II quarter, 1999, 66 (in Georgian).
Gvaramia L., Legal bases of the application of civil liability insurance, Journal. "Law", No. 10-11-12, 2000, 59 (in Georgian).
Henshel S., Civil Case Processing Methodology, Tbilisi, 2009, 192, 202 (in Georgian).
Iv. Surguladze, Essays from the History of Political Doctrines of Georgia, Tbilisi, 2001, 27, 142 (in Georgian)
Ivanova Yu.A., Eriashvili N.D., Radchenko T.V., Grounds for the offensive and the content of
Kaplunova E.S., Force majeure and related concepts, Abstract, Tomsk-2005 (in Russian) [21.09.2023].
Khokhlova G.V., The concept of civil liability, In the book: Current problems of civil law, Issue 5, ed. Vitryanskogo V.V., M., 2002, 72 (in Russian).
Kobakhidze A., Civil law, general part, chapter, 2001, 243 (in Georgian).
Kotsiol H., Harmonization and fundamental issues of European tort law, g. “Bulletin of Civil Law”, No. 5, 2017 (vol. 17) (in Russian) [21.09.2023].
Kötz H., Lorman F., Introduction to the law of obligations, In the book: Problems of civil and business law in Germany, M., 2001,53 (in Russian).
Krasavchikov O.A., Compensation for harm caused by a source of increased danger, M., 1966, 142.
Kropholler I., German Civil Code, educational commentary, 13th edition, translators: Darjania T., Chechelashvili Z., editors: Chachanidze E., Darjania T., Totladze L, Tbilisi, 2014, 150 (in Georgian).
Lando O., Non-performance of the contract (breach), Journal. "Review of Georgian Law", Vol. 14, 2013-2014, 111, 113 (in Georgian).
Legashvili D., Impact of changed circumstances on contractual relations, Journal. "Journal of Law", No. 2, 2013, 95 (in Georgian).
liability for harm caused by a source of increased danger, g. “Journal of International Civil and Commercial Law”, No. 1, 2021, 20 (in Russian).
Machaladze S., Compensation for damages in case of breaching obligation (comparative analysis of Georgian and German legislation), Journal. "Review of Georgian Law", special edition, 2004, 76, 95 (in Georgian).
Maidanik L.A., Sergeeva N.Yu., Financial liability for damage to health, M., 1953, 30.
Maisuradze A., Impossibility of performing the obligation in German and Georgian civil law, Journal. "Justice and Law", No. 2, 2013, 43 (in Georgian).
Medicus D., Certain types of obligations in the German Civil Code. In the book: Problems of civil and Business Law in Germany, M., 2001, 150 (in Russian).
Motsonelidze N., Subrogation as a way to satisfy the request of an insurer Tbilisi, 2016, 131 (in Georgian).
Nachkbia A., Definitions of civil legal norms in the practice of the Supreme Court (2000-2013), Tbilisi, 2014, 138, 140 (in Georgian).
Ninidze T., The legal nature of the obligation to compensate for damages caused in a situation of extreme necessity, collection: "Current issues of Soviet Civil Law and Process", volume, 1977, 72-73 (in Georgian).
Osakwe K., Comparative law in schemes. General and special part, M., 2002, 268 (in Russian).
Oykhgenzikht V.A., Category of risk in Soviet civil law, g. “Jurisprudence”, No. 5, 1971, 65, 67.
Pobedonostsev K.P., Course of civil law, part 3, Contracts and obligations, M., 2002 (in Russian).
Pokrovsky I.A., Basic problems of civil law, M., 1998, 286, 290 (in Russian).
Shakiashvili B., Impossibility of performing the contractual obligation, abstract, Tbilisi, 1998, 11 (in Georgian).
Shotadze T., Property Law, Tbilisi, 2014, 71 (in Georgian).
Sikarishvili K., Liability without fault in Anglo-American criminal law. A legal anomaly or an effective mechanism of regulation, Journal. "Law," No. 1, 2000, 70 (in Georgian).
Sobchak A., On some controversial issues of the general theory of legal responsibility, g. “Jurisprudence”, No. 1, 1968, 55 (in Russian).
Talon D., Complicated Performance, Journ. "Review of Georgian Law," Vol. 14, 2013-2014, 97.
The commercial law of Russia, pod. ed. Puginsky B.I., M., 1999, 119 (in Russian).
Todua M., Willems H., Obligatory Law, Tbilisi, 2006, 53 (in Georgian).
Totladze L., Commentary on the Civil Code, Book II, Property law, authors collective, ed. Chanturia L., Tbilisi, 2018, 6 (in Georgian).
Tsereteli T., Public danger and lawlessness in criminal law, Tbilisi, 2006, 175 (in Georgian).
Tsertsvadze G., Contract law, authors collective, ed. Jugheli G., Tbilisi, 2014, 456 (in Georgian).
Tsiskadze M., Commentary on the Civil Code of Georgia, Vol. IV, Vol. II, authors collective, ed. Chanturia L., Zoidze B., Ninidze T., Shengelia R., Khetsuriani J., Tbilisi, 2001, 106 (in Georgian).
Tsiskadze M., Compulsory civil liability insurance of motor vehicle owners, Journ. "Review of
Tskitishvili T., Crimes that endanger human life and health, Tbilisi, 2015, 94 (in Georgian).
Tsuladze M., Grounds for releasing the owner of the source of excessive danger from liability (research according to Georgian and French law), Journal. "Journal of Law", No. 1, 2015, 289 (in Georgian)
Vashakidze G., Commentary on the Civil Code, Book III, authors collective, ed. Chanturia L. (ed.) 2019, 575 (in Georgian).
Windscheid B., On obligations under Roman law, St. Petersburg, 1875, 42 (in Russian).
Zarandia T., Place and Terms of Performance of Contractual Obligations, Tbilisi, 2005, 127 (in Georgian).
Zoidze B., Commentary on the Civil Code of Georgia, Books III, authors collective, ed. Chanturia L., Zoidze B., Ninidze T., Shengelia R., Khetsuriani J., Tbilisi, 2001, 329, 374, 425-426 (in Georgian).
Zoidze B., Constitutional control and order of values in Georgia, Tbilisi, 2007, 19-20 (in Georgian).
Zoidze B., for the issue of property liability insurance of car owners, Journ. "Soviet Law", No. 4, 1984, 24-25 (in Georgian).
Zoidze T., Compensation for damage caused by a defective product, comparative analysis of
Zoidze T., Impossibility of performing obligations according to Georgian and German law, Journal "Private Law Review," No. 2, 2019, 150, 151 (in Georgian).
Zweigert K., Kotsi H., Introduction to comparative jurisprudence in the private law, Vol. II, translated from the Russian edition by E. Sumbatashvili, translation ed. and the author of the last words is T. Ninidze, Tbilisi, 2001, 190, 344, 355 (in Georgian).
Oceanlaw.ru/wp-content/uploads/2018/02/Фр.Кодекс-123 [21.09.2023].
rulaws.ru/gk-rf-chast-2/Razdel iV/glava-59/paragraph-1.statya-1079 [21.09.2023].
Downloads
Published
How to Cite
Issue
Section
License
This work is licensed under a Creative Commons Attribution-ShareAlike 4.0 International License.
