Probing The Application Of The Contributory Negligence Rule In Tort Law

Contributory negligence rule is a vital principle concerning allocation of responsibility in tort law. Its very nature tells us that when the infringee himselves'negligence is the element that contributed to the loss and the escalation of the loss, the application of this principle can indicate a reasonable allocation of responsibility in order to be in line with the equity law. Contributory negligence rule was first introduced by Pom ponius Rules in Ancient Roman law and had greatly influenced on both Roman Law and Common Law's tort law system. Contributory negligence rule can be discussed from two angles: from the perspective of the infringee, he might shoulder some responsibility because of his own negligence, whereas from the standing point of the infringer, he might be barred from recovery or undertook part of the liability. The application of the contributory negligence rule, in the first place,constitutive requirements must be clarified. First, subjectively, the infringee's act must be out of his own negligence; second, the infringee's wrongful act directly or indirectly causes the loss; third, the infringee's act must be wrong and inappropriate. But the infringee's capability is not one of the constitutive requirements. In the second place, contributory negligence rule is not only used in fault liability but also strict liability, only that with special way of application. It is not only used in the condition of infringee's negligence, but also under the circumstances when a third party is fault. It is not only used when infringee's negligence directly cause the loss or escalate the loss, but also can be used by analogy if the loss or escalation of the loss is contributed by the infringee's physical peculiarity. In the last place,theoretically, there are three ways of applying contributory negligence rule, in main include compare the degree of negligence, magnitude of causation effect, and the compromise of the former two. Practically, the courts apply all of the three modes when dealing with the allocation of responsibility; this will give birth to a confusion and disorder in standards. Therefore, when applying compensatio ipso iure, one should exam causation effect at the first hand, and then the degree of negligence and with a combination of other elements in order to nail down the liability of the contesting parties.