Although It Is a Fairly Widely Debated Topic. Some Think That the Explanation Is the Desire to Embrace the So-Called Grounds of Justification. See, among Many, Fraenkel, M. (1979) Tatbestand und Zurechnung bei § 823 Abs. 1 BGB, 71 ff., Putting Forward That, Although the BGB Drafters Did Not Pay Much Attention to the Topic, for It Was Considered Something Natural, in the Motive zum Vorentwurf eines BGB It Can Be Read That Damage Has to Be Compensated “Except When It Is Made an Exception in a Certain Case Because of Special Reasons” (p. 4); These Exceptions Were the So-Called Grounds of Justification (p. 13) (see Fraenkel, 100).

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.