Тwo arguments in support of the theory of negligence as an objective standard in tort law

Abstract

The article puts forward two arguments in favour of the view that negligence is of an objective nature – its recognition by the court practice as being such, and the similar opinion expressed in foreign legal doctrine. The basics of the objective theory of negligence in civil law are presented. Court decisions are given in which the court has found that negligence in civil law consists in the failure to exercise due diligence following an abstract model – the conduct of a good husbandman. This view is in line with the classical understanding of Oliver Holmes regarding negligence, which is adopted in most of the well-developed countries. The conclusion is that there exists a useful legal instrument that is supported by legal theory and practice, and a discussion is raised on its future improvement.