Has ‘Strict Liability’ Given Way to a General ‘Duty to Compensate Harm’ in Czech Law?

Abstract

According to the new Civil Code, adopted in the Czech Republic in 2012 (“2012 Civil Code”), ‘strict liability’ (or ‘no-fault liability’) is no longer considered ‘liability’ in the traditional sense of the term. The declared concept of the Civil Code is based on the premise that the notion of ‘liability’ should be limited only to cases where a person can be held liable based on their culpability (fault). All other cases, denoted by the doctrine as the opposite to ‘fault-based liability’ (or more accurately, liability based on culpable conduct), that is, ‘no-fault’ or ‘strict’ liability, are – in actual fact – no longer conceived or designated by the Civil Code as ‘liability’ (in Czech: odpovědnost). They are rather constructed as a legal duty to compensate harm. This begs the question whether unlawfulness can be considered a prerequisite for the duty to compensate harm. The authors argue that the answer to this question depends on what the unlawfulness relates to – whether an unlawful act or an unlawful state of affairs. Their argument builds on the premise that unlawful acts are linked to an individual’s conduct, where both the reason and the will of the individual are present and, as a result, such unlawful acts are based on the individual’s culpability (fault). On the other hand, what is typical of an unlawful state of affairs is that the law has been violated, not because someone acted contrary to it, but rather because the rights of the aggrieved party were infringed. The authors conclude that an unlawful state of affairs is a general legal fact which covers all cases of ‘strict’ (or ‘no-fault’) liability and even a breach of contractual obligations. The authors develop their premise not only within Czech law, but also through comparison with other jurisdictions (France, Germany, and Austria), and analyze the potential of and limits to such approach.