Rethinking the Law of Loss Allocation

Today’s tort law is based on the principle of fault; in addition, strict liability, which primarily covers sources of particular danger, is often recognised. All damage events that are not covered by these liabilities are referred to as fortuitous and are assessed in an undifferentiated manner according to the principle of ‘casum sentit dominus’. The exemption from liability often leads to the neglect of the injured party’s interests if their goods – assigned to them – are destroyed or damaged by accidental events. The prevailing one-sided consideration of the interests of the injuring party violates the principle that, in private law relationships, the interests of both sides must be given equal consideration, and thus also violates the principle of bilateral justification. The question arises as to whether the broad area of fortuitous damage requires a differentiated assessment and, if so, how a solution that complies with the principle of equal treatment and fits into a coherent overall concept of the law of loss allocation could be framed.