Противправност као засебан услов грађанске одговорности
Unlawfulness as a Separate Condition for Civil Liability According to German, Swiss and Austrian Laws

Summary/Abstract: Jering was the first one to point out the difference between unlawfulness and fault, and it was in the mid--19th century. His teaching was soon accepted by German, Swiss and Austrian jurists, but they also happened to interpret it in different ways. However, those differences in interpretation are of theoretical rather than practical value. Further in the text there are given differing opinions on unlawfulness in civil law, types of unlawfulness, relationships between various types of unlawfulness, and bases for proving unlawfulness. A separate section of the text is dedicated to the relationship between unlawfulness and fault. It is specifically explained that unlawfulness and fault as notions have to be differentiated, because they are different not only in formal, but material sense as well. Their role in law regarding liability for damage is different. Fault is decisive in determining whether the establishing of a causal relationship with damage should be attributed to a certain individual. On the other hand, unlawfulness is decisive in determining whether it leads to liability when there are grounds for it, such as fault, for example. Hence, the obligation to pay damages depends both on the unlawfulness of a harmful act and the fault of the wrong-feasor, except in case of objective liability.

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