On Duty Of Care In The Tort Of Negligence

On the conditions of subjective imputability, people are apt to judge fault with the loss of care. However, with objective negligence gradually substituting for subjective fault, the subjective test of fault will inevitably fades out and a new test shall be required if it does not totally deviate from traditional criterion. It is not easy but not impossible to find the concept "duty of care" in traditional civil law system, although people are accustomed to express a supposed a state of diligence with the word "care" when a man is acting. But when the state of negligence parts from the man himself and links to reasonable man or good pater familias, the care is not the care it was. To differentiate them, the legists introduce new concepts like "internal care" and "external care". The internal care is a care that people should keep intent or diligent, and the external care refers to care to act with diligence. So people win their theoretical satisfaction, they can use the convenient concept "care" whatever they think the negligence is subjective or objective. But if we take negligence and delict together into account, considering the common character of them is the breach of duty for action, it is farfetched to still define the negligence with the subjective opinion"care".However, the duty of care is introduced into law of torts is not only because of the simple consideration of notion, but for the indispensable function it plays in the common law of torts.The duty of care is an obligation of avoidance of harm based on the objective obligation of expectancy of harm. The author hold objective duty of care and do not think the duty of care have nothing to do with the logos of human. In the territory of negligence, the differentiation between the subjective fault and objective negligence is the range that they take into account. When we take our view from the actor himself to a reasonable man, we are performing the request of objective duty of care. So there is no reason to clean expectancy out of the duty of care, and it is the same with the concept "capability to bear responsibility". There is maybe only a simple standard for duty of care, but a reasonable man need not show the same anxious care whenhandling a pound of butter as he would a pound of dynamite. In this sense, it is true to say that "the nature of the thing may very well call for different degrees of care". The rule of expectancy and the neighbor principle and the rule of reliance are just the different forms for the standard. Therefore it is possible to differentiate negligence by the degrees of the duty of care, and the test is the degree to which the behavior is deviated.It is valuable for the traditional law of torts to differentiate negligence and delict, but the development of objective imputation, especially the development of the lawless behavior theory, makes the differentiation lose its rationality. The duty of care becomes the common test to judge negligence and delict. The only difference is whether the duty of care of a reasonable man is considered to be expected and avoided or not. It is not so reasonable to oppose the integration of the two elements just because some pettiness. Some types of duty of cares are characteristic of the capability to combine the general duty of care and the general hazard. It is possible to combine the negligent responsibility and the restrict responsibility, and eliminate the gray zone between the two principles.The general duty of care is really in existence, but it plays little role in judging negligence. The duty of care needs specifying and categorizing. The capability to expect and avoid harm is factually the problem of the capability of care. It is necessary to categorizing the duty of care by the test of care, and then to achieve the categorization of negligence. Because of the ability of the author and the length of the article, I just introduce some type of duty of cares, such as the duty of care of the experts and the duty of care of security of the businessman for their business room. And I simply deal with some problems of the duty of care of the children.At last, the author gives some comment on several tort law drafts of the civil law of China. Every draft has its advantage but I agree the draft written by Dr. Ma Changhua.