Corrective Justice, the Continuity Thesis, and the Duty of Care in Negligence Law: Lessons from John Gardner’s From Personal Life to Private Law

This paper considers the relevance of a finding that, even absent the defendant's unlawfulness, the private law claimant would have suffered the losses claimed. It provides a principled framework for considering the issues raised by such a finding of ‘losses in any event’, arguing that it should be distinguished both from causation of injury and from the scope of the defendant's duty of care, and that it should be treated as raising a question of damages. It highlights the need, particularly in pure economic loss cases, for a careful comparison of the real and the hypothetical losses so as to determine whether the latter would indeed have been losses in any event. In this regard, the decision of the Court of Appeal in Calvert v William Hill Credit Ltd is subjected to close scrutiny. A more general argument advanced is that tort and contract both do and should adopt similar approaches in this field.

Download Full-text

DUTIES AND LIABILITIES IN PRIVATE LAW

Legal Theory ◽

10.1017/s1352325206060265 ◽

2006 ◽

Vol 12 (2) ◽

pp. 137-156

Author(s):

Peter Jaffey

Keyword(s):

Strict Liability ◽

Corrective Justice ◽

Private Law ◽

Liability Claims

Private law is generally formulated in terms of right–duty relations, and accordingly, private-law claims are understood to arise from breaches of duty, or wrongs. Some claims are not easy to explain on this basis because the claim arises from an act that the defendant was justified in doing. The violation/infringement distinction seems to offer an explanation of such claims, but it is argued that the explanation is illusory. Claims of this sort are best understood as based not on a primary right–duty relation at all but on a “primary liability” or “right–liability” relation. A primary-liability claim is not a claim arising from the breach of a strict-liability duty. The recognition of primary-liability claims does not involve skepticism about duties or rules or legal relations and it is consistent with the analysis of private law in terms of corrective justice.

Download Full-text

Civil Recourse Theory

The Oxford Handbook of the New Private Law ◽

10.1093/oxfordhb/9780190919665.013.4 ◽

2020 ◽

pp. 52-68

Author(s):

Benjamin C. Zipursky

Keyword(s):

Basic Structure ◽

Tort Law ◽

Structural Theory ◽

Legal Rights ◽

Duty Of Care ◽

Political Morality ◽

Role Of The State ◽

Private Rights ◽

Negligence Law

This chapter examines civil recourse theory. The phrase “civil recourse theory” has developed two connotations, suggesting: (1) a structural theory of the normative underpinnings of private law liability placing primary emphasis on a plaintiff’s right of redress and the role of the state in affording plaintiffs the power to exact damages from those who have violated the plaintiff’s legal rights; and (2) a distinctive, overarching tort theory that emphasizes a plaintiff’s right of redress while simultaneously emphasizing relational duty in negligence law and torts as legal wrongs. The chapter identifies several other views developed in connection with civil recourse theory but meant to stand apart from it. The thesis that negligence law’s duty of care is relational is among them; so too is the thesis that tort law consists of specifications of legal wrongs, that these wrongs are defined in relatively strict manner, and that plaintiffs must have an injury to prevail on a tort claim. Deploying the narrower conception of civil recourse theory, the chapter defends the principle of civil recourse as a matter of political morality and depicts the place of private rights of action in the basic structure of a just liberal democracy.

Download Full-text

Private Law Exceptionalism? Part II: A Basic Difficulty with the Argument from Formal Equality

Canadian Journal of Law & Jurisprudence ◽

10.1017/cjlj.2018.1 ◽

2018 ◽

Vol 31 (1) ◽

pp. 5-32

Author(s):

Avihay Dorfman

Keyword(s):

Corrective Justice ◽

Private Law ◽

Logical Space ◽

Substantive Equality ◽

Formal Equality ◽

Justice Theories

Contemporary discussions of private law theory often assume that parties in a private law interaction can relate as equals if, and only if, equality is cast in terms of formal equality (sometimes called transactional equality). I devote these pages to refute this conceptual view, showing that it does not draw correctly the map of the logical space in which conceptions of private law equality are located. Negatively, I argue that the formal conception of equality, most comprehensively defended by certain influential corrective justice theories, does not exhaust this space. Affirmatively, I argue that this space provides room for at least one more conception which I call ‘substantive equality’.

Download Full-text

Private liability without wrongdoing

University of Toronto Law Journal ◽

10.3138/utlj.2021-0062 ◽

2021 ◽

Author(s):

Rebecca Stone

Keyword(s):

Essential Role ◽

Legal Liability ◽

Corrective Justice ◽

Private Law ◽

Political Morality ◽

The Poor ◽

Poor Person ◽

Distribution Of Resources ◽

The Rich ◽

Prior Relationship

Rights-based theories of private law tend to be wrongs based and defendant focused. But many private law wrongs do not seem like genuine wrongs, at least when the background distribution of resources is unjust. A very poor person, for example, may be held legally liable for breaching a one-sided contract with a very rich person. When such a contract reflects and reproduces existing injustice, it is hard to view the poor person’s breach of such a contract as a genuine wrong against the rich person. Conversely, some obvious moral wrongs do not generate legal liability. There is, for example, no private law duty of rescue in the absence of a prior relationship in many situations in which most would agree that there is a moral duty of rescue. Thus, private legal liability seems not to track moral wrongdoing in significant respects, raising the question what instead justifies such liability. Instead of justifying private liability in terms of the defendant’s wrongdoing, as corrective justice and civil recourse theorists do, we should seek a justification in terms of the plaintiff’s moral permission to enforce her apparent rights. Switching our gaze from the defendant’s wrongdoing to the plaintiff’s moral permission to enforce her rights will not be normatively consequential if the plaintiff’s moral permission arises when and only when the defendant has wronged her. But, I argue, background injustice can drive a wedge between genuine wrongdoing and the plaintiff’s moral permission. Thus, by reconceptualizing private liability in terms of a plaintiff’s moral permission to enforce her apparent rights, private law may be justified by the essential role it plays in constituting non-ideal political morality.

Download Full-text

The Idea of Redressive Justice

The Right of Redress ◽

10.1093/oso/9780198814405.003.0002 ◽

2020 ◽

pp. 21-53

Author(s):

Andrew S. Gold

Keyword(s):

Third Parties ◽

Corrective Justice ◽

Private Law ◽

The Right

Chapter 2 introduces the idea of redressive justice, while also distinguishing leading theories of corrective justice. As the chapter develops, there is a distinctive kind of justice involved when right holders undo wrongful transactions they have suffered—that is, when they engage in acts of redress—or when third parties undo such transactions on the right holder’s behalf. The authorship of a remedy matters, in part because a wrongdoer’s obligation to undo a wrong is not symmetrical with a right holder’s privilege (if it exists) to undo that same wrong. Authorship also matters because the moral ledger of the parties involved will vary depending on which party undoes a wrong. This chapter argues that much of private law is best explained in light of the justice in redress.

Download Full-text

Simplifying the Complexities of Negligence Law – A Joint Academic/Judicial Proposal

Journal of European Tort Law ◽

10.1515/jetl-2019-0121 ◽

2020 ◽

Vol 10 (3) ◽

pp. 207-256

Author(s):

Israel Gilead

Keyword(s):

Common Law ◽

Simplified Model ◽

Duty Of Care ◽

Natural Evolution ◽

The Third ◽

Short Overview ◽

Canadian Law ◽

Proposed Model ◽

Negligence Law

AbstractOver a century, common law judges, academics, and practitioners have struggled with the complexities of negligence law. All agree that negligence liability is imposed on a defendant whose unreasonable conduct caused foreseeable harm to the plaintiff, and who owed a duty of care to the plaintiff. But views differ considerably as to the meaning and role of each element (unreasonable conduct, harm causation, duty), the test and the relevant considerations that should be applied to each, the interrelation between these elements, and the meaning and role of the foreseeability requirement in each element. Against this background, the author has argued for years that the above complexities can be easily solved by a simplified model of negligence. Recently the author’s model has been embraced by Israeli justices and judges. The article presents the proposed model, explains how it solves the described complexities, and fends off criticism. It then demonstrates the model’s operation by applying it to the 2018 SCC’s decision in the Rankin case. A glimpse at the Third Restatement on Torts shows that it steers in the same direction, as evidenced by an analysis of the Palsgraf case and the unforeseeable plaintiff question. Following a short overview of leading British cases from Donoghue to the 2018 decision in Robinson, it is argued that a shift to the proposed model would be a natural evolution that can be easily achieved. In contrast, it is argued that Canadian law has moved in another direction, for incorrect reasons. The model is then compared with another reform recently suggested in the literature. Finally, fault-based liability in continental Europe is viewed from the perspective of the proposed model.

Download Full-text

Correlativity and its Logic: Asymmetry not Equality in the Law

Canadian Journal of Law & Jurisprudence ◽

10.1017/cjlj.2019.4 ◽

2019 ◽

Vol 32 (1) ◽

pp. 83-108

Author(s):

Andrew Halpin

Keyword(s):

Human Rights ◽

Social Relationships ◽

Corrective Justice ◽

Legal Rights ◽

Private Law ◽

The Core ◽

The Law ◽

Instrumental View

This article provides a scheme of intelligibility for correlativity, recognising its importance for analytical and normative aspects of legal relations. It considers a variety of types of normative correlativity, investigates the logic of correlativity, and distinguishes three forms of correlation involving legal rights. It undertakes careful re-examination of Aristotelian texts to reveal neglected or misrepresented insights, restores certain Hohfeldian distinctions, and argues for a more complicated relationship between correlativity and reciprocity than previously acknowledged. Specific sections employ the scheme to provide critiques of Weinrib’s use of correlativity in his understanding of private law as corrective justice, and Zylberman’s amalgam of reciprocal correlativity in his non-instrumental view of human rights. A brief concluding section notes the deep asymmetry of law and suggests an understanding of corrective justice based on asymmetry rather than equality. More speculatively, it raises doubts about the core conviction of Kantian thinking on legal and social relationships.

Download Full-text