Abstract
The new Czech Civil code (CC) traditionally does not define causation and leaves this task to the judiciary and legal theory. Despite this statutory "silence", the changes that stand behind the CC may lead to a conception of causation that is very different from that which has been used in the Czech Republic until recently.
The aim of this article is to develop this new theory of causation which is based on an analysis of two crucial reformative features of the CC. In particular, the author seeks to answer how our conception of causation might be influenced by the declared (1) departure from materialism and (2) inclination to the idealistic western tradition.
He examines the extra-contractual fault-based liability regime (§ 2910 CC) by a historical, doctrinal and comparative method and shows that the causation under current Czech law can be understood as a two phased ideal test of factual and legal causation (i.e. a relation between a breach of a duty and damage). However, the factual causation test is only a negative one.
A positive legal causation (adequacy, scope of liability) is then implied by the statute. According to the CC, the causal link can be presumed where the damage was foreseeable by a rational average human, or by a person of average abilities.
Each of these two presumptions plays a crucial role when assessing different causation (relating to primary or consequential damage). This theory may then substantially strengthen the procedural position of the claimant.