Duhaime's Law Dictionary


Fault Definition:

A breach of duty or negligence and, in some circumstances, the errors or omissions of others or of things under a person's control.

Related Terms: Causation, Negligence

Fault is an essential term in the common law of personal injury or tort, as it is a condition of liability under civil law regimes of civil responsibility.

In Tort Law, the authors write:

"The majority of torts are complete and compensation must be made when there is conduct, causation, fault and damage....

"Fault - which incidentally is not a term of art in English law - one should note that it assumes three forms: malice, intention (including recklessness) and negligence."

In tort law, a plaintiff would have to prove faulty on the part of the alleged tort-feasor, failing which his or her claim for damages would fail.

In Clerk & Lindsell on Torts, the authors write of:

"... four main categories of fault: intentional harm, intentional conduct, negligence and responsibility within the definition of a strict liability tort."

In civil law, fault is an essential ingredient for a claim based on an alleged delict.

In the 1998 book Traité de droit civil in regards to the civil law of France, the authors write of the traditional civil law definition of fault as:

"... some act or omission on the part of the defendant which is both unlawful (illicite) and caused by him."

In Baudoin's book on Québec law, he notes a distinction in some civil law systems but states that:

"... fault continues, in Québec law, and with a few exceptions, as a required element of civil liability."

He goes on to define fault (faute) as:

" .. the omission as to a pre-existing duty end the breach of a standard of care."

REFERENCES:

  • Baudoin, Jean-Louis, La Responsabilité Civile, 7e edition (Montréal: Editions Yvon Blais, 2007), page 149-151.
  • Dugdale, A. and others, editors, Clerk & Lindsell on Torts (London: Sweet & Maxwell, 206), page 31.
  • Markensinis, B. and Deakin, S., Tort Law, 4th Ed. (Oxford: Clarendon Press, 1999).
  • Viney, G. et Jourdain, P., Traité de Droit Civil: Les Conditions De La Responsabilité (Paris: Libraririe Gérérale de Droit et de Jurisprudence, 1994), page 320. Extract translated by Lloyd Duhaime.

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