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Neglect of care; an act to which blame or censure is attached. Fault implies any Negligence, error, or defect of judgment.

Fault has been held to embrace a refusal to perform an action that one is legally obligated to do, such as the failure to make a payment when due.

West's Encyclopedia of American Law, edition 2. Copyright 2008 The Gale Group, Inc. All rights reserved.


one of the central concepts in the law of tort or delict. A legal system can look at harmful conduct in different ways. It can focus on the interest infringed and declare it a tort to occupy another's property, for example. However, this produces results that certainly cause moral problems and thus eventually cause legal problems. So where a person inadvertently infringes another's interest, the law has to decide whether to penalize or not. Generally, the more advanced a legal system, the more it is likely to take this into account. Thus, Roman law achieved this result in the early years of the first millennium and English law began to do so towards the end of the second. In the 19th century especially, the proposition began to be put in reverse, it being said that there would be no liability without fault, fault being necessary but not necessarily sufficient to establish liability. Fault had the benefit of comprising most existing categories of case where the plaintiff deliberately harmed the defendant, but it also allowed cases where the defendant had been careless to be included. Fault became associated with intentional wrongdoing or recklessness, which was its equivalent, and also with certain instances of carelessness.

In civilian systems, fault in this sense of exhibiting less than reasonable care would be sufficient to establish a prima facie case but would be subject to limitation in the scope of liability in the basis of the notion of remoteness. English law (and ironically) Scots law took a different course with the decision in Donoghue v. Stevenson 1932 SC (HL) 31, which established that a lack of care would constitute fault but only where there was a pre-existing duty of care. This duty could be found in precedent or arise from the relationship between the parties. Fault became much more a technical concept after that, and its moral aspect diminished. An objective approach to some aspects of the investigation into liability was a further blow to any moral approach. Fault in the later part of the 20th century fell out of favour as a mechanism for achieving many of the things that tort or delict did. Exhortation of citizens is better done through penalties inflicted through an efficient criminal justice system backed by an organized police force. The existence of an insurance industry can make it economically efficient to redirect liability in the direction of the person who is most likely to be able to acquire insurance cover at lowest cost, thus ensuring that injured persons seeking compensation are actually compensated without recourse to general taxation or charity. Statutory strict liability is beginning to appear in the interstices of the law so that fault may become a safety net for cases outside strict liability.

Collins Dictionary of Law © W.J. Stewart, 2006
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