Subject guide
Comparing Tort Law Across Legal Systems
The same word can name different rules, and different words can name similar ones. Compare questions and sources rather than labels, and say plainly what each side leaves open.
A comparative question usually starts from a concrete problem: would this harm be compensated here and there, and on what basis? The tempting shortcut is to find the word "tort" in a translation and line the two systems up beneath it. That produces a table that looks complete and compares vocabulary. A sound comparison asks the same questions of each system, answers them from each system's own sources, and records the gaps.
Start from the problem, not the category
Even the word "civil" needs pinning down, since it can name a legal tradition or the non-criminal law of private relationshipsS01. Describe the harm and the parties in plain terms first, then ask each system how it treats that situation. The familiar division into intentional, negligent and strict liability comes from an American overviewS10. Another system may group the same situations differently, and a comparison has to show that rather than hide it.
A comparison worksheet
| Question | United States, introductory overviews | Germany, BGB section 823 only |
|---|---|---|
| Source type | Common law and state statutes; tort law varies by state, and many courts treat the Restatement of Torts as an influential guideS10. | One provision of the Civil Code, read in GermanS19; an English translation exists, with its own stated amendment dateS16. |
| Protected interests | Open in this source. Cornell defines injury as invasion of a legal right and harm as loss or detriment, but does not identify which rights or interests US tort law protectsS10. | Life, body, health, freedom, property or another right of another person; and interests protected by a statute intended to protect othersS19. |
| Basis of liability | Intentional, negligent or strict liability, depending on the categoryS10. | Intentional or negligent unlawful injury under subsection 1; breach of a protective statute under subsection 2, with fault required where the statute can be breached without itS19. |
| Causation | For negligence, cause in fact and proximate cause are typically requiredS11. | Compensation is for the damage arising from the injuryS19. Further causation rules: open, not established by this source. |
| Defences | Cornell says judges interpreting statutory language have wide latitude in deciding which defences may override a claimS10. Specific defences and their operation: open. | Open, not established by the provision checked. |
| Remedies | Usually money damages; injunction and restitution are less commonS10. | Compensation for the resulting damageS19. How damage is measured: open. |
| Procedure and currency | Open. Depends on the state and the forum; check current authority. | German text fetched on the check date belowS19. The English translation says it includes amendments made by the Act of 10 August 2021, but it was not verified as current or completeS16. |
The sources provide partial and non-equivalent answers. The German provision enumerates interests and fault language; the American overview describes law that varies by state and supplies no protected-interest list. Both use high-level fault and remedy vocabulary, but they do not establish equivalent rules. Specific defences, procedure, and the availability and measure of remedies remain open. Those gaps are the research plan.
Research steps, in order
- State the problem neutrally. Facts and harm, without legal labels borrowed from either system.
- Settle each system's sources. Identify the statute or code provision and the leading decisions for each, using the country guides, and decide which sense of "civil" is in playS01.
- Ask the worksheet questions of each. Source type, protected interests, basis of liability, causation, defences, remedies, procedure and currency.
- Mark what is open. Where a source does not answer a question, say so in the cell rather than filling it from memory.
- Check translations and dates. Quote the governing language and record each translation's stated versionS16S19.
- Write the comparison last. Draw conclusions only from rows that both sides actually answer.
Common traps
- Equating terms because a translation uses the same word. The German portal's translation heads the relevant title "Torts"S16; that is a translator's label, not proof of matching rules.
- Comparing a single code provision with a whole national body of case law, and calling the difference a difference between systems.
- Filling empty cells from memory, or from an overview written about a different system.
- Treating American overviews as one national rule when they note variation by stateS10.
- Describing French provisions without having read the governing source.
Related reading on this site
- Comparative law tools and collectionsGateways, harmonised instruments and classification indexes for the wider comparison.
- Civil law: the tradition and the subjectThe two meanings of the term, and how to read a code.
- Researching tort lawThe American vocabulary of civil wrongs, framed as research questions.
- Researching the law of GermanyWhere German law is published and which text governs.
- Researching the law of FranceWhere to find French law before filling a French column.
- Researching Texas lawFor a comparison anchored in one American state.
Sources
Each page below was fetched and read on the date shown. That records what the page said that day. It is not a legal review, and the law or the page may have changed since.
- S01 civil law (Wex legal dictionary). Legal Information Institute, Cornell Law School. https://www.law.cornell.edu/wex/civil_law. Checked 2026-10-03.An introductory secondary definition of both meanings of the term, last reviewed by its editors in July 2025. Orientation, not authority for any jurisdiction.
- S10 tort (Wex legal dictionary). Legal Information Institute, Cornell Law School. https://www.law.cornell.edu/wex/tort. Checked 2026-10-03.A secondary overview of American tort law. Its categories and examples are not a statement that any act creates liability.
- S11 negligence (Wex legal dictionary). Legal Information Institute, Cornell Law School. https://www.law.cornell.edu/wex/negligence. Checked 2026-10-03.A secondary overview of the elements typically required in the United States. Not a universal test and not an assessment of any case.
- S19 Bürgerliches Gesetzbuch (BGB), § 823 Schadensersatzpflicht. Gesetze im Internet, German federal legal portal. https://www.gesetze-im-internet.de/bgb/__823.html. Checked 2026-10-03.The German text of one section, fetched on the date shown. A starting provision, not German tort law as a whole.
- S16 German Civil Code (BGB), English translation. Gesetze im Internet, German federal legal portal. https://www.gesetze-im-internet.de/englisch_bgb/englisch_bgb.html. Checked 2026-10-03.States that it includes amendments made by the Act of 10 August 2021. Not verified as current; quote the German text instead.
This guide is a research method with a deliberately limited example. It does not state the tort law of any country in full, and it is not legal advice.
Sources checked 2026-10-03. 5 sources cited on this page.