Abstract

Recent theoretical analysis has exhibited a structural ambiguity in the normative foundation of the tort of negligence, namely uncertainty whether liability is based on the breach of a legal duty or on the responsibility for the victim's loss. This normative ambiguity is due to the fact that the European law of extracontractual liability was conceptually framed for purposes totally different from modern ideas of fair distribution of risks that have historically been connected with rights- based conceptions of tort law. From a comparative point of view it becomes apparent thatdf the idea of protecting individual rights by tortious remedies is constitutive for the modern European law of extracontractual liability, although hidden beyond the dominant terminology of duties, breach and wrong. Thus it is submitted that a rights-based analysis of the law of torts offers a significantly better understanding than traditional duty-models can achieve