The law and economics of pure economic loss: Introduction to the special issue of the International Review of Law and Economics

Financial harm may be caused in many different ways. It can be said that it appears in several different ’’types", each produced in distinct factual circumstances. Different "types" of financial harm may demand a different treatment by the law. The considerations that ought to determine the policy of the law vary together with the factual . circumstances, in which each particular type offinancial harm becomes manifested. Thence the need for a separate examination of the major, or "generic", types of such harm, a need that has already been - detected by Comparative lawyers writing on the subject.(20) The present study will concentrate on the problem ' of financial harm that is not the product of a harmful intention (21) . In the Common Law of Negligence this problem is known as the "pure economic loss" problem. The solutions given to it by English Law are compared to the solutions of the French Law of Torts, and to those of the law of Torts of the German Federal Republic (West Germany)(22). The compared Tort systems not only are leadingthe major legal traditions of our age, each employing its own individual "style" (23), but, also, operate in virtually similar social and economic environments. This should allow the comparison to expose more easily the true merits of any "stylistic" idiosyncrasies, thatthey might possess in this particular connection. The problem of pure economic, loss caused by erroneous advice or information is not examined in * detail in the present study. It has been already the subject of comprehensive Comparative examination (24).

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11. The Tort of Negligence

Introduction to Business Law ◽

10.1093/he/9780198824886.003.0011 ◽

2019 ◽

pp. 299-334

Author(s):

Lucy Jones

Keyword(s):

Criminal Law ◽

Standard Of Care ◽

Economic Loss ◽

Causal Link ◽

Duty Of Care ◽

Pure Economic Loss ◽

Breach Of Duty ◽

The Law ◽

The Difference

This chapter discusses the difference between the law of torts and contract and criminal law. It explores the tort of negligence, considering the necessary elements for a claim of negligence, namely the defendant owed the claimant a duty of care, the defendant breached that duty of care, and reasonably foreseeable damage was caused by the breach of duty. The chapter considers the special requirements for the recovery of pure economic loss and for loss as a result of psychiatric injuries, looking at both primary and secondary victims. The principles relating to breach of a duty of care, including the standard of care, are discussed. The chapter concludes with a discussion of the final element, considering the need for a causal link between the breach of duty by the defendant and the damage suffered by the claimant.

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Liability of the State and Public Authorities in Israel and South Africa

European Journal of Comparative Law and Governance ◽

10.1163/22134514-45060008 ◽

2013 ◽

pp. 1-47

Author(s):

Max Loubser ◽

Tamar Gidron

Keyword(s):

South Africa ◽

South African ◽

Common Law ◽

Economic Loss ◽

Tort Law ◽

Public Authority ◽

The South ◽

Public Authorities ◽

Pure Economic Loss ◽

The Law

Both the Israeli and the South African legal systems are classified as mixed legal systems, or mixed jurisdictions. In Israel, tort law was originally pure English common law, adopted by legislation and later developed judicially. In South Africa, the law of delict (tort) was originally Roman-Dutch but was later strongly influenced by the English common law. Under both systems, tort law is characterized by open-ended norms allowing extensive judicial development. This paper traces and compares the structural basis, methodology, policy, and trends of the judicial development of state and public-authority liability in the Israeli and South African jurisdictions. Specific factors that have impacted the development of state- and public-authority liability are: (1) constitutional values, (2) the courts’ recognition of the need for expanded protection of fundamental human rights and activism towards achieving such protection, (3) the multicultural nature of the societies, (4) problems of crime and security, and (5) worldwide trends, linked to consumerism, toward the widening of liability of the state and public authorities.Within essentially similar conceptual structures the South African courts have been much more conservative in their approach to state liability for pure economic loss than their Israeli counterparts. This can perhaps be attributed to a sense of priorities. In a developing country with huge disparities in wealth, the courts would naturally be inclined to prioritize safety and security of persons above pure economic loss. The South African courts have been similarly more conservative in cases involving administrative negligence and evidential loss.The development of the law on state and public-authority liability in Israel and South Africa is also the product of factors such as the levels of education, the effectiveness of the public service, and the history and pervasiveness of constitutional ordering. Despite important differences, the law in the two jurisdictions has developed from a broadly similar mixed background; the courts have adopted broadly similar methods and reasoning; and the outcomes show broadly similar trends.

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Negligence and defective buildings: demolishing the foundations of Anns?

Legal Studies ◽

10.1111/j.1748-121x.1991.tb00624.x ◽

1991 ◽

Vol 11 (1) ◽

pp. 85-102 ◽

Cited By ~ 1

Author(s):

Marianne Giles ◽

Erika Szyszczak

Keyword(s):

Product Liability ◽

Economic Loss ◽

Pure Economic Loss ◽

House Of Lords ◽

New Type ◽

The Law ◽

Tort Claims

It was generally accepted that the House of Lords in Anns v Merton LBC introduced an ‘entirely new type of product liability’ into the law of tort by expanding liability in negligence in relation to the construction of defective buildings. The novelty of the action was to introduce liability in tort for the construction of the defective product itself and to allow a claim for economic loss resulting from the defect. The consequence was to blur some of the traditional boundaries between contract and tort claims and to cause controversy in relation to the nature of the allowable loss recoverable from the negligent act. In particular it led to the question of whether such claims fell into the category of ‘pure economic loss’: a loss not easily accepted in conventional tort jurisprudence.

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Distinguishing between property damage and pure economic loss in negligence: a personality thesis

Legal Studies ◽

10.1111/j.1748-121x.2001.tb00177.x ◽

2001 ◽

Vol 21 (3) ◽

pp. 481-514 ◽

Cited By ~ 6

Author(s):

Christian Witting

Keyword(s):

Explanatory Power ◽

Economic Loss ◽

The Self ◽

Economic Losses ◽

Property Damage ◽

Economic Interests ◽

Pure Economic Loss ◽

The Future ◽

The Law

The law of negligence favours redress for damage to property interests over redress for damage to mere economic interests. The question arises whether this preference can be justified. In endeavouring to answer it, the author surveys existing reasons given by courts and commentators for maintaining a distinction between property and economic interests. Each of these reasons, which collectively focus upon the ‘problematic’ nature of economic losses, is found to be either ad hoe in nature or without substantial explanatory power. However, it is submitted that the distinction is explicable on the basis that, whereas an individual's personality is partly constituted by the property that he or she owns, so that property can be seen as essential to the ways in which individuals constitute and define themselves, no such claim can be made with respect to mere abstract holdings of wealth. Although wealth permits the acquisition of property and participation in activities and experiences which might help to constitute and define the self in the future, the very fact that wealth has not been transposed into these things precludes it from being considered as important as actual holdings of property. The protection of property interests ought, therefore, to precede the protection of mere economic interests.

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The Role of Experts in Assessing Damages – A Law and Economics Account

European Journal of Risk Regulation ◽

10.1017/s1867299x00001392 ◽

2011 ◽

Vol 2 (3) ◽

pp. 376-396 ◽

Cited By ~ 4

Author(s):

Michael Faure ◽

Louis Visscher

Keyword(s):

Economic Analysis ◽

Damage Assessment ◽

Law And Economics ◽

Economic Loss ◽

Point Of View ◽

Personal Injury ◽

Economic Point ◽

Pure Economic Loss ◽

Potential Problems

In this contribution we focus on the role of experts in the assessment of tort damages from an economic point of view. We distinguish two different aspects.First, we examine the role which economists might play in assessing damages in tort cases. This approach focuses on the insights that Law and Economics provides regarding the correct assessment of damages. We pay specific attention to two problematic forms of losses where economic insights may play an important role: pure economic loss and personal injury damage (both loss of income and compensation for immaterial losses due to fatal and non-fatal accidents).Second, we investigate from a Law and Economics point of view the role of experts in general (not only economists) in the assessment of damages. We discuss i.a. the question why experts may be involved in the assessment of damages, the potential problems (and the possible solutions) when using experts, and differences between party appointed experts and court appointed experts.It turns out that the economic analysis can provide a different, insightful viewpoint in some respects, such as the fact that market based mechanisms may help to provide incentives to party appointed experts to provide an accurate and objective damage assessment.

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4. Pure economic loss and negligent misstatement

10.1093/he/9780192897275.003.0004 ◽

2021 ◽

pp. 33-49

Author(s):

Carol Brennan

Keyword(s):

Economic Loss ◽

Professional Services ◽

Physical Injury ◽

Property Damage ◽

Injury Death ◽

Pure Economic Loss ◽

District Council ◽

The Law

This chapter discusses the law on pure economic loss, which is loss that is not derived from physical injury, death, or property damage. It may be consequential, that is resulting from the acquisition of a defective product or property. More commonly, the issue arises due to a negligent misstatement, or provision of professional services. This is an area of commercial and professional importance where there has been a trend towards expansion in the area of negligent misstatement. The two key cases in this area are Murphy v Brentwood District Council and Hedley Byrne v Heller.

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11. The Tort of Negligence

Introduction to Business Law ◽

10.1093/he/9780198766261.003.0011 ◽

2017 ◽

Author(s):

Lucy Jones

Keyword(s):

Criminal Law ◽

Standard Of Care ◽

Economic Loss ◽

Causal Link ◽

Duty Of Care ◽

Pure Economic Loss ◽

Breach Of Duty ◽

The Law ◽

The Difference

This chapter discusses the difference between the Law of Torts and Contract and Criminal Law. It explores the tort of negligence, considering the necessary elements for a claim of negligence, namely the defendant owed the claimant a duty of care, the defendant breached that duty of care, and reasonably foreseeable damage was caused by the breach of duty. The chapter considers the special requirements for the recovery of pure economic loss and for loss as a result of psychiatric injuries, looking at both primary and secondary victims. The principles relating to breach of a duty of care, including the standard of care, are discussed. The chapter concludes with a discussion of the final element, considering the need for a causal link between the breach of duty by the defendant and the damage suffered by the claimant.

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Expectation Losses, Negligent Omissions and the Tortious Duty of Care

The Cambridge Law Journal ◽

10.1017/s0008197300097725 ◽

1996 ◽

Vol 55 (1) ◽

pp. 43-55 ◽

Cited By ~ 2

Author(s):

John Murphy

Keyword(s):

Economic Loss ◽

Duty Of Care ◽

Final Decision ◽

Pure Economic Loss ◽

English Law ◽

The Law

In English law, the recovery of pure economic loss falls mainly within the province of the law of contract. Only in very limited circumstances does the law of tort provide for the recovery of such losses. As Cardozo C.J. explained in Ultramares Corporation v. Touched, tort is concerned not to permit “liability in an indeterminate amount, for an indeterminate time to an indeterminate class”. Notwithstanding this reticence, their Lordships' speeches, though not the final decision, in the seminal case of Hedley Byrne & Co. Ltd. v. Heller and Partners Ltd. provided a notable inroad into the rigidity of this stance. Since Hedley Byrne, the question has become, instead, how far, not if, pure economic loss is and should be recoverable in the law of negligence.

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7. General defences

Tort Law Directions ◽

10.1093/he/9780198805359.003.0007 ◽

2018 ◽

Author(s):

Vera Bermingham ◽

Carol Brennan

Keyword(s):

Economic Loss ◽

Duty Of Care ◽

Physical Injury ◽

Legal Knowledge ◽

Property Damage ◽

Pure Economic Loss ◽

Key Points ◽

The Law ◽

Principle Of Liability

Without assuming prior legal knowledge, books in the Directions series introduce and guide readers through key points of law and legal debate. Questions, diagrams, and exercises help readers to engage fully with each subject and check their understanding as they progress. The tort of negligence originated as a remedy for property damage and physical injury. However, recovery of compensation for psychiatric injury and pure economic loss, in cases where they were not caused by physical injury or property damage, has proved difficult. Duty of care for psychiatric injury is contingent upon whether the claimant is a primary or secondary victim. This chapter discusses the policy reasons for limiting duty of care for psychiatric injury, the mechanisms by which the law limits duty of care for psychiatric injury, the meaning of ‘pure economic loss’, and the development of the Hedley Byrne & Co Ltd v Heller & Partners Ltd (1964) principle of liability for negligent statements. The chapter also examines the ‘thin skull’ rule, which applies to psychiatric injury in the same way as to physical injury.

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