Extracontractual Liability Law as a Policy Instrument: Public Law in Disguise or in Chains?

Abstract

Extracontractual liability law is no exception to the general trend of instrumentalisation of private law. It is increasingly being used to pursue goals other than its primary aim of compensation. This instrumentalisation is a dual phenomenon that has developed both out of top-down and bottom-up impulses. Although specific questions may arise for each of these two movements, they encounter a common limit. On a fundamental level, the instrumentalisation is restricted by extracontractual liability law’s primary compensatory function. Other functions, such as enforcement (of rights) or prevention, are grafted onto this primary function and can only be pursued to the extent that they are compatible with it. It relates to the tension created by pursuing public goals through extracontractual liability law as an essentially private law instrument. Attention is needed not to overstretch extracontractual liability law’s prerequisites, which are coherent with its private law embedding. It would turn extracontractual liability law into a dangerous passe-partout. Besides stretching the existing prerequisites, one may also consider alternative instruments for pursuing non-compensatory goals, such as preventive actions. Given the ubiquitous occurrence of the phenomenon, the present contribution will start from Belgian and Dutch law, although the conclusions may reach beyond these legal systems.