The Adequacy of the Law of Torts

1961 ◽  
Vol 19 (1) ◽  
pp. 44-61 ◽  
Author(s):  
Cecil A. Wright
Keyword(s):  
Public Interest ◽  
Common Law ◽  
Strict Liability ◽  
Freedom Of Speech ◽  
Tort Law ◽  
Accidental Injury ◽  
The Common ◽  
The Law

Any attempt to evaluate the adequacy or inadequacy of tort law in general is bound to fail unless the scope of inquiry is severely limited. All attempts to find some unifying principle have failed. In light of the diverse interests involved which may be political, domestic or economic, and the purposes to be achieved, which may range from the quasi-criminal to determination of title to property, it would be a miracle of intellectual abstraction if it were otherwise.To confine inquiry to “accidental” injuries, i.e., those arising as a by-product of some lawful activity carried on for reasons other than the invasion of a plaintiff's interest, is helpful but not satis-factory. For example, “accidental” injury to a person's privacy, honour or reputation could fall in this category. While issues of “strict liability” or liability for “fault” permeate this field and have, in England and Canada, been developed by the courts in favour of the former, public interest in freedom to disseminate news and the encouragement of freedom of speech is an important factor here which makes it impossible to compare other branches of the law where there is no counterpart. Here too legislation is playing an important role. By statute in England attempts have been made to mitigate some of the harsher features of strict liability by eliminating damages and substituting an “offer of amends” for accidental and non-negligent defamation. While legislation in Canada has been widespread, particularly with regard to the total or partial abolition of the distinction between libel and slander, such legislation has nowhere changed the strict liability of the common law.

Personalized Legal Areas

2021 ◽  
pp. 61-84
Author(s):  
Omri Ben-Shahar ◽  
Ariel Porat
Keyword(s):  
Criminal Law ◽  
Common Law ◽  
Tort Law ◽  
Contract Law ◽  
Standards Of Care ◽  
Criminal Sanctions ◽  
The Common ◽  
The Law

This chapter illustrates personalized law “in action” by examining it in three areas of the law: standards of care under the common law tort doctrine of negligence, mandated consumer protections in contract law, and criminal sanctions. In each area, the chapter examines personalization of commands along several dimensions. In tort law, standards of care could vary according to each injurer’s riskiness and skill, to reduce the costs of accidents. In contract law, mandatory protections could vary according to the value they provide each consumer and differential cost they impose on firms, to allocate protections where, and only where, they are justified. And in criminal law, sanctions would be set based on what it takes to deter criminals, accounting for how perpetrators differ in their motives and likelihood of being apprehended, with the potential to reduce unnecessary harsh penalties.

Defaming the Dead

2017 ◽  
Author(s):  
Don Herzog
Keyword(s):  
Common Law ◽  
Tort Law ◽  
Dead Person ◽  
The Common ◽  
The Dead ◽  
The Law ◽  
The Way

If you defame the dead, even someone who recently died, tort law does not think that’s an injury: not to the grieving survivors and not to the dead person. This book argues that defamation is an injury to the recently dead. It explores history, including the shaping of the common law, and offers an account of posthumous harm and wrong. Along the way, it offers a sustained exploration of how we and the law think about corpse desecration.

Illegal Earnings

2018 ◽  
Vol 9 (1) ◽  
pp. 54-80
Author(s):  
James Goudkamp ◽  
Lorenz König
Keyword(s):  
United Kingdom ◽  
Common Law ◽  
Tort Law ◽  
Contract Law ◽  
Private Law ◽  
The United Kingdom ◽  
Considerable Promise ◽  
The Subject ◽  
The Common ◽  
The Law

AbstractThis article addresses the principles of tort law that govern claims in respect of lost illegal earnings. It focuses on common law jurisdictions (and the law in the United Kingdom in particular) where such claims, despite apparently being commonplace, have been largely ignored by academics. It describes the existing law and calls in aid in this regard a four-fold taxonomy of cases. The article then turns attention to how claims in respect of lost illegal earnings ought to be decided. At this juncture, the article looks to ideas emanating from German tort law, which has developed a highly sophisticated jurisprudence on the subject of illegal earnings. The German approach, stated simply, requires tort law to defer to rules in other departments of private law. If, for example, contract law would not protect an interest that a claimant has in a particular transaction by reason of the transaction being tainted with illegality, tort law will not allow a claimant indirectly to obtain the benefits of that transaction via a claim for lost illegal earnings. It is argued that the German solution holds considerable promise and merits consideration as a serious alternative to the significantly more complicated principles that the common law courts have developed, which principles currently lack any thoroughgoing rationalisation.

Liability in Bailment in Israeli Law — Rethinking Benefit

1997 ◽  
Vol 31 (4) ◽  
pp. 744-753 ◽  
Author(s):  
Shirley Renner
Keyword(s):  
Common Law ◽  
Civil Law ◽  
Tort Law ◽  
Primary Object ◽  
The Common ◽  
The Law

While “classical” tort law deals with the liability of those unlawfully in possession of goods for their damage or loss, the law of bailment deals with the liability of those lawfully in possession of goods for their damage or loss.The Israeli statute relating to bailment, The Bailees Law, more closely resembles the law of bailment in common law, than its civil law counterpart, the law of deposit. Similar to the law of bailment in common law, Israel's Bailees Law covers both possession where the primary object is the safekeeping of goods, e.g., a warehouseman, and possession where the primary object is other than safekeeping of goods, e.g., chattel hire, hire of work and labour to be performed upon a chattel, and a pledge.In terms of liability for the loss of or damage to the goods, the Israeli statute roughly resembles the “traditional” law of bailment in the common law, which distinguishes different kinds of bailment according to the existence and location of benefit received.

American Slavery and the Path of the Law

1996 ◽  
Vol 20 (2) ◽  
pp. 281-316 ◽  
Author(s):  
Jenny B. Wahl
Keyword(s):  
Common Law ◽  
District Of Columbia ◽  
Appellate Court ◽  
Accidental Injury ◽  
Henry V ◽  
American Slavery ◽  
American Law ◽  
The Common ◽  
The Law

There is some soul of goodness in things evil,Would men observingly distill it out.— Shakespeare,Henry VFederal and state appellate court reporters for the 15 American slave states and the District of Columbia contain nearly 11,000 cases concerning slaves. In deciding these cases, southern judges formulated doctrines that would later become commonplace in other disputes. In fact, the common law of slavery, whether it concerned the sale, hiring, or accidental injury of a slave, looks far more like modern-day law than like antebellum law. Slave law, in many ways, helped blaze the path of American law generally.

Common Law Codification: Lessons and Warnings from Twenty-First Century Australia

2020 ◽  
Vol 10 (3) ◽  
pp. 183-206
Author(s):  
Mark Lunney
Keyword(s):  
Common Law ◽  
Tort Law ◽  
First Century ◽  
Rare Phenomenon ◽  
The Common ◽  
The Law ◽  
Twenty First Century ◽  
Negligence Law

AbstractCodification of tort law is a rare phenomenon in the common law world. However, building on earlier precedents, in the early 2000s, Australian jurisdictions embarked on a project of placing important general principles of negligence law into legislation. This article considers these provisions and argues that they can be considered as an attempt to codify certain parts of the law of tort. Both the process by which this codification took place, and the contents of the ‘codes’, provide interesting comparative material for civilian jurisdictions with codified tort law as well as for common law systems.

Torts and Other Wrongs

2019 ◽  
pp. 1-26
Author(s):  
John Gardner
Keyword(s):  
United States ◽  
New Zealand ◽  
Common Law ◽  
Tort Law ◽  
The United States ◽  
Common Cause ◽  
England And Wales ◽  
The Common ◽  
The Law

This chapter focuses on the law of torts, not in the United States, but in other major common law jurisdictions (England and Wales, Canada, Australia, and New Zealand) in which tort cases are normally adjudicated by judges sitting without juries. It considers the so-called classical interpretation of the common law of torts by John Goldberg and Ben Zipursky, and how they tend to equivocate on an important point of law in a way that puts them at odds with some writers with whom they would do better to make common cause. It suggests that this equivocation is where the law of the United States parts company with the law in the rest of the common law world. The problem, an English lawyer might then teasingly say, is with American tort law rather than with the Goldberg and Zipursky rendition of it.

scholarly journals VAGUENESS, AUTONOMY, AND R V BROWN

2015 ◽  
Vol 1 ◽  
Author(s):  
David Arnold
Keyword(s):  
New Zealand ◽  
Criminal Law ◽  
Common Law ◽  
Tort Law ◽  
The Third ◽  
The Common ◽  
The Law

This article comments on the article in this volume entitled ‘Is Society Still Shackled with the Chains of a 1993 England?: Consent, Sado-masochism and R v Brown’ by Jordan Moulds. It argues that the defence of consent should not be circumscribed to the extent that it was in Brown for three reasons: the first is based on maintaining the coherence of the law; the second arises from the importance of valuing the liberty of individuals in cases where a statute is vague; and the third is found in the value of autonomy. This comment argues in Part I that the criminal law and tort law should set the same threshold at which consent will no longer afford a defence. Part II draws on the theories of Raz, Fuller and Marmor argues that the liberty of individuals should not be so easily sacrificed where the statute allegedly governing the impugned behaviour is vague; and Part III concludes that the common law position on consent in New Zealand serves as an example of an acceptable balance between the autonomy of the victim and the role that the criminal law has to play in reducing threats to peace and order. 

6. Product Liability

2019 ◽  
pp. 74-84
Author(s):  
Dr Karen Dyer
Keyword(s):  
Consumer Protection ◽  
Common Law ◽  
Strict Liability ◽  
Product Liability ◽  
Online Resources ◽  
Essential Information ◽  
Consumer Protection Act ◽  
The Common ◽  
The Law

Each Concentrate revision guide is packed with essential information, key cases, revision tips, exam Q&As, and more. Concentrates show you what to expect in a law exam, what examiners are looking for, and how to achieve extra marks. The chapter discusses the law on product liability. It covers key debates, sample questions, diagram answer plan, tips for getting extra marks, and online resources. To answer questions on this topic, students need to understand the following: the general principles of negligence; the meaning of strict liability; and the Consumer Protection Act 1987 and its relationship with the common law regarding consumer protection.

The Sale of ‘Liquid Gold’ in Ireland: Some Thoughts from Tort Law

2019 ◽  
Vol 26 (1) ◽  
pp. 45-59
Author(s):  
Aoife Finnerty
Keyword(s):  
Breast Milk ◽  
Human Milk ◽  
Common Law ◽  
Tort Law ◽  
Liquid Gold ◽  
Statutory Duty ◽  
The Common ◽  
The Law

Abstract At present, the sale of human milk in Ireland is completely unregulated. When the transaction concerns tainted breast milk and physical harm subsequently occurs, however, it may still be subject to the law of tort. By selling unsafe milk, a seller may be in breach of their statutory duty under the Liability for Defective Products Act, 1991 and their conduct may amount to negligence under the common law.

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