The impact of French tort law on mixed jurisdictions : Québec, Louisiana and Malta compared

Abstract

This thesis examines the nature of tort law in the mixed-jurisdictions of Québec, Louisiana and Malta, through a study of the respective legislative and jurisprudential sources. French tort law is outlined and reference thereto is made, as a comparative analysis is conducted. The first chapter traces the traits and characteristics which give a mixed-jurisdiction its distinctive bijurality. These tendencies are explored against the backdrop of the legal culture which historically prevailed within the systems under study. The point of departure is the virtually ad verbatim reproduction of the Napoleonic clause which existed in all three systems as common law infiltrated their area of Tort Law. Chapter Two gives an overview of French tort law, offering thus the basis and background against which deviation may be assessed. Chapters Three, Four and Five are grounded on a systematic pattern which considers each mixed system respectively and salient contrasting features with the position under French Tort are highlighted. As aspects which have retained the original French approach are pointed out, areas where subtle mixing created a unique blend are also identified. This main body of the thesis brings forth jurisprudential interpretations which are tested against the obtaining legislative texts with striking results that point unequivocally to the fact that the legislative façade is not always telling of the underlying judicial tendencies. The sixth and final chapter compares the three mixed-jurisdictions at the level of substantive law. Thus a clear view was achieved with regards to the degree of "foreign" influence which each system has permitted within the elements, conditions and concepts of its tort law, where each system stood on the spectrum of variations between French law of tort and its common law cousin. This made possible a categorization indicating where each could be seen as applying the French equivalent, the common law and also where a blend between the two was formed. The choice of countries gives relevance to this study in that, collectively and particularly, they provide varying degrees which a mixed-jurisdiction might display. This dissertation, indeed, concludes with the finding that the impact left by French tort law has been absolute in Québec, largely rejected in Louisiana, with Malta located in an intermediate position of continuing interaction between civil and common law.