Authors Use Here a Different Terminology, Distinguishing between Objective (Result) and Subjective (Conduct) Unlawfulness. The Former Is Maintained e.g. by Honsell, H. (2005) Schweizerisches Haftpflichtrecht. 4th edition, § 5, ns. 1 ff., Who Deems Damage Always Unlawful except When There Is a Ground of Justification; the Same Point of View Is Shared by Oftinger, K. and Stark, E. (1995) Schweizerisches Haftpflichtrecht. Vol. I, 5th Edition, § 4, n. 9, and Werro, F. (2005) La responsabilité civile. ns. 291 y 326. The Opposite Opinion Is Defended by Schwenzer, I. (2003) Schweizerisches Obligationenrecht. Allgemeiner Teil. 3rd Edition, para 50.04, p. 305, with the Arguments That It Has the Advantage That Protects Not Only Property Rights But Purely Economic Damages As Well, and That It Makes It Possible to Establish a Limit to Liability through the Introduction of Determined Duties of Care; More or Less the Same, Brehm, R. (1998) Berner Kommentar zum schweizerischen Privatrecht. Das Obligationenrecht. Vol. VI, 1; 3, 1, 2nd Edition, art 41, n. 33, p. 18 f.; Widmer, P. (1998) Function and Relevance under Swiss Law. In Koziol, H., Unification of Tort Law: Wrongfulness, Kluwer Law International, The Hague, 116, Appealing As Well to the Semantic Structure of art 41 Or in Comparison with the Italian Civil Code; Stöckli, H. (2007) Notizen zur Widerrechtlichkeit. In Niggli, M.A., Hurtado, J. and Queloz, N., Eds., Festschrift für Franz Riklin, 227 ff., Arguing That the Problem of the Purely Economic Damages Does Not Force to Accept an Objective Conception of Unlawfulness. Hesitant, Schnyder, A.K. (2003) Basler Kommentar zum Schweizerischen Privatrecht. Obligationenrecht. I, 3rd Edition, art 41, ns. 30 ff., pp. 329 f.

has been cited by the following article:

• TITLE: Unlawfulness in Western European Tort Law

  AUTHORS: Martín García-Ripoll

  KEYWORDS: Tort Law, Unlawfulness, Wrongfulness, Fault, Liability of Minors and Mentally Ill Persons

  JOURNAL NAME: Open Access Library Journal, Vol.2 No.6, June 15, 2015

  ABSTRACT: In the wake of the German Civil Code (BGB), the codes of different countries of Western Europe include an apparently distorting requisite for an action in tort, which is the unlawfulness. This paper aims to clarify its original meaning and the possibilities of accepting it in jurisdictions where its law does not require expressly that element, including those of Common Law. Before moving directly into the problem, a clarification seems necessary for Common Law scholars, for this paper is focused on a scientific European issue. In Common Law, it is debatable whether there is a general tort law or different torts, but no matter the opinion of the different authors is , each tort is supposed to have its own requisites. In contrast, in Continental Law, the trend is to establish common requisites for all torts (although it is distinguished between “normal” and strict liability), and to insert subsequently nuances when dealing with special group of cases. This paper deals with one of these general elements of an action in tort in some codified systems: the unlawfulness, but without rejecting its usefulness in Common Law jurisdictions.