Comparative Tort Law

2006 ◽  
pp. 1002-1042 ◽  
Author(s):  
Gerhard Wagner
Keyword(s):  
Strict Liability ◽  
Comparative Law ◽  
Tort Law ◽  
Critical Discussion ◽  
Private Law ◽  
Starting Point ◽  
The Law ◽  
Scope Of Protection

Tort law has always been one of the major areas of comparative law. Whereas the law of property, even today, remains on the outskirts of comparative learning, the law of extra-contractual liability has attracted much interest from comparative law scholars. Endeavours in the comparison of the different systems of delict and tort have received a further boost from the objective of harmonizing European private law. This article consider general clauses versus a variety of individual torts, the scope of protection, the liability for fault, strict liability, and tort law and insurance. Regardless of whether one agrees or disagrees with the solutions offered, the principles and the commentaries thereon certainly provide a valuable starting-point for further scholarly efforts and critical discussion.

Comparative Tort Law

2019 ◽  
pp. 993-1030
Author(s):  
Gerhard Wagner
Keyword(s):  
Strict Liability ◽  
Comparative Law ◽  
Tort Law ◽  
Critical Discussion ◽  
Starting Point ◽  
Tort System ◽  
The Law ◽  
Scope Of Protection

Tort law has always been one of the major areas of comparative law. Whereas the law of property, even today, remains on the outskirts of comparative learning, the law of extra-contractual liability has attracted much interest from comparative law scholars. This article considers general clauses versus a variety of individual torts, the scope of protection, the liability for fault, strict liability, and tort law and insurance. It also discusses the choice between the tort system and no-fault insurance schemes. Finally, it addresses the challenges raised by digitalization. Regardless of whether one agrees or disagrees with the solutions offered, the principles and the commentaries thereon certainly provide a valuable starting point for further scholarly efforts and critical discussion.

Introduction

2014 ◽  
Author(s):  
Robert D. Cooter ◽  
Ariel Porat
Keyword(s):  
Social Welfare ◽  
Strict Liability ◽  
Tort Law ◽  
Contract Law ◽  
Private Law ◽  
The Law ◽  
The Cost

This book examines how the law of torts, contracts, and restitution can be improved by showing how private law reduces the cost of accidents, lubricates bargains, and encourages unrequested benefits. It considers the two pervasive rules of tort law that provide incentives for actors to reduce accident costs: strict liability and negligence. It also explains how contract law achieves effiency through the remedy of damages and how restitution law allows benefactors to recover gains that their beneficiaries wrongfully obtained from them. The book makes three central claims: misalignments in tort law should be removed; in contract law, promisee's incentives should be improved; and the law should recognize some right of compensation for those who produce unrequested benefits. Each claim is based on the desire to reform private law and to make it more effective in promoting social welfare.

CODIFYING TORT LAW: LESSONS FROM THE PROPOSALS FOR REFORM OF THE FRENCH CIVIL CODE

2008 ◽  
Vol 57 (3) ◽  
pp. 561-582 ◽  
Author(s):  
Paula Giliker
Keyword(s):  
Comparative Law ◽  
Tort Law ◽  
Civil Code ◽  
Critical Assessment ◽  
Private Law ◽  
European Level ◽  
The Law

AbstractThis article deals with a topic at the heart of modern comparative law: codification of private law on a national and European level. It offers a critical assessment of the recent French attempt to redraft the obligations provisions of its civil code, focusing on the revisions to the law of tort or delict. There has been little analysis of these provisions within or outside France. This article examines the key changes proposed and identifies the implications in terms of tort policy.

Torts and Other Wrongs

2019 ◽  
Author(s):  
John Gardner
Keyword(s):  
Public Policy ◽  
Distributive Justice ◽  
Strict Liability ◽  
Private Law ◽  
Moral Significance ◽  
Reasonable Person ◽  
Reasonable Person Standard ◽  
The Law

Torts and Other Wrongs is a collection of eleven of the author’s essays on the theory of the law of torts and its place in the law more generally. Two new essays accompany nine previously published pieces, a number of which are already established classics of theoretical writing on private law. Together they range across the distinction between torts and other wrongs, the moral significance of outcomes, the nature and role of corrective and distributive justice, the justification of strict liability, the nature of the reasonable person standard, and the role of public policy in private law adjudication. Though focused on the law of torts, the wide-ranging analysis in each chapter will speak to theorists of private law more generally.

Law and Economics

2020 ◽  
pp. 84-102
Author(s):  
Daniel B. Kelly
Keyword(s):  
Economic Analysis ◽  
First Generation ◽  
Law And Economics ◽  
Private Law ◽  
Foreseeable Future ◽  
Business Associations ◽  
The Third ◽  
Starting Point ◽  
The Law ◽  
The Impact

This chapter analyzes how law and economics influences private law and how (new) private law is influencing law and economics. It focuses on three generation or “waves” within law and economics and how they approach private law. In the first generation, many scholars took the law as a starting point and attempted to use economic insights to explain, justify, or reform legal doctrines, institutions, and structures. In the second generation, the “law” at times became secondary, with more focus on theory and less focus on doctrines, institutions, and structures. But this generation also relied increasingly on empirical analysis. In the third generation, which includes scholars in the New Private Law (NPL), there has been a resurgence of interest in the law and legal institutions. To be sure, NPL scholars analyze the law using various approaches, with some more and some less predisposed to economic analysis. However, economic analysis will continue to be a major force on private law, including the New Private Law, for the foreseeable future. The chapter considers three foundational private law areas: property, contracts, and torts. For each area, it discusses the major ideas that economic analysis has contributed to private law, and surveys contributions of the NPL. The chapter also looks at the impact of law and economics on advanced private law areas, such as business associations, trusts and estates, and intellectual property.

17. Liability for Animals

2019 ◽  
pp. 510-527
Author(s):  
Simon Deakin ◽  
Zoe Adams
Keyword(s):  
Strict Liability ◽  
Tort Law ◽  
Law Students ◽  
Social Concern ◽  
The Law ◽  
Special Rules

Liability for Animals raises further questions about the role, and future, of strict liability in the context of the law of tort. This chapter examines the special rules of strict liability under the Animals Act 1971, including those concerning liability for straying livestock, liability for ‘dangerous animals’, and liability for dogs. This is followed by discussions of defences, remoteness of damage and strict liability, and liability for dogs. The wording of the Animals Act 1971 is notoriously complex, and the law in this area is, for this reason, the object of must frustration for courts, and tort law students, alike. Even so, the law governing liability of animals concerns matters of social concern and, for the time-being at least, it seems that the Act is here to stay.

scholarly journals Materially Identical to Mistaken Payment

2020 ◽  
Vol 33 (1) ◽  
pp. 31-57
Author(s):  
Tatiana Cutts
Keyword(s):  
Private Law ◽  
Unjust Enrichment ◽  
The Core ◽  
Powerful Effect ◽  
Starting Point ◽  
Central Characteristic ◽  
The Law

Mistaken payment is the ‘core case’ of unjust enrichment, and it has had a powerful effect on the development of this area of private law. For Peter Birks, unjust enrichment was simply ‘the law of all events materially identical to mistaken payment’—to be shaped through a process of abstraction from that core case. But this begs the question: how do we work out what counts as ‘materially identical’ to mistaken payment? The most obvious starting point, and that which Birks chose, is the central characteristic of money: money is valuable. Thus, ‘the law of all events materially identical to mistaken payments’ is ‘the law of all events that unjustly enrich one party at another’s expense’.In this article, I argue that this starting point is incorrect. Rather than looking for some factual similarity between mistaken payment and other events, we should identify the role that money plays in justifying restitution. And what justifies restitution in the core case is not the ‘value’ or ‘benefit’ that money confers; rather, it is a defect in the legal transaction that links payor with payee. The payee is not liable because she has been ‘enriched’, but because she is the counterparty to a legal transaction which exhibits traits that there are institutional reasons to disavow. Just like contract and torts, the role of value is secondary: where correcting the injustice in specie is impossible or undesirable, the defendant must pay whichever sum will most nearly achieve that goal.

The Concept of Fault of the Tortfeasor in Estonian Tort Law: A Comparative Perspective

2013 ◽  
Vol 38 (2) ◽  
pp. 141-170 ◽  
Author(s):  
Janno Lahe
Keyword(s):  
Strict Liability ◽  
Comparative Law ◽  
Tort Law ◽  
Frame Of Reference ◽  
Comparative Perspective ◽  
Tort Liability ◽  
European Model ◽  
Common Frame Of Reference

The fault of the wrongdoer is one of the preconditions for general tort liability. Nowadays, fault-based liability and strict liability are two equally important forms of liability that are not polar opposites but, rather, complement one another. This article focuses on the meaning of the fault of a tortfeasor. It considers the notion of fault in two European model rules (the Draft Common Frame of Reference and the Principles of European Tort Law), in the Estonian Law of Obligations Act, and also makes reference to German, French, English, and Russian tort law. We shall begin with a comparative discussion of the questions of general liability based on fault, fault capacity, various forms of fault, the burden of proving fault, and the importance of differentiating those forms of fault. Thereafter, we will treat the issues of fault in the context of liability for torts committed by another person and, also, borderline issues between fault-based liability and strict liability. This analysis seeks to offer the reader a basis for determining whether the regulations of Estonian tort law are justified or whether amendments should be considered within such a comparative-law framework.

scholarly journals Private Law Liability for Faulty ICT

2020 ◽  
pp. 219-234
Author(s):  
Mireille Hildebrandt
Keyword(s):  
Strict Liability ◽  
Tort Law ◽  
Third Party ◽  
Private Law ◽  
Emotional Harm ◽  
Fault Liability

This chapter considers instances where ICT applications cause physical, material, economic, or emotional harm, with a focus on third party liability or tort law. The chapter should be read as an important example of how private law liability may step in to deter the development, sale, or usage of faulty ICT. It discusses the relevant legal conditions of damage, causation, fault liability, and strict liability, ending with questions around compensation and deterrence as the overarching goals of tort law.

Civil Wrongs and Civil Procedure

2020 ◽  
pp. 87-110
Author(s):  
Matthew A. Shapiro
Keyword(s):  
Tort Law ◽  
Civil Procedure ◽  
Essential Elements ◽  
Civil Litigation ◽  
Private Law ◽  
Procedural Law ◽  
The Law

This chapter addresses the significance of civil procedure in private law’s treatment of civil wrongs. It begins by canvassing contemporary private law theory, focusing in particular on the civil recourse theory of tort law. The chapter notes that civil recourse theory incorporates assumptions about private law’s characteristic responses to wrongs, each of which is, ultimately, an assumption about the law of civil procedure. They include assumptions that civil litigation is strongly adversarial, that it provides plaintiffs with an opportunity to confront defendants for civil wrongs, and that it culminates in an authoritative judicial declaration of where things stand between the parties as a matter of right. This chapter also points out that civil recourse theorists tend to treat these features of procedural law as fixed and essential elements of tort law. But close examination shows this to be a mistake. The rise of routinized settlement and arbitration, among other things, suggests that private law’s procedural responses to civil wrongs are varied and changing, often in ways inconsistent with interpretations given by leading theorists.

Sign in / Sign up

Export Citation Format

Share Document