scholarly journals The Principle of Trust for Exceptions to the Non-Regression Clause in the Case of Delict of Negligence

2019 ◽  
Vol 28 ◽  
pp. 86-94
Author(s):  
Laura Feldmanis
Keyword(s):  
Supreme Court ◽  
Third Party ◽  
Legal Rights ◽  
Level Of Care ◽  
Duty Of Care ◽  
Comprehensive List ◽  
Penal Law ◽  
A Chain ◽  
General Communication ◽  
Traffic Rules

The delict of negligence is defined in terms of violation of the duty of care. While that duty entails displaying the level of care required from anyone and necessary for communication in the relevant society, there is no comprehensive list of the standards pertaining to the duty of care, especially as would be foreseeable from an objective perspective. In addition, a question arises: in which case does the person have to take responsibility in accordance with the delict of negligence for damaging a person’s legal rights stemming from a crime committed by a third party, or rather is this specific person’s duty restricted to his own acts. While the answer may seem at first glance to be provided by the non-regression clause, in line with which a person’s intervention within a chain created by the person who caused the original threat rules out the possibility of accusing the person who caused the original threat, the matter is not so simple: exceptions to the non-regression clause exist, and it is not always applicable. Certain principles are employed in the dogmatics of penal law accordingly, to specify how the duty of care and objective predictability are substantiated and how to handle exceptions to the non-regression clause. One of these rules, which is an outgrowth of the traffic rules, is the principle of trust. Applied not just with regard to traffic but also in situations of division of duties and in relation to general communication between people, this principle has been confirmed in Estonian Supreme Court practice. The article considers two significant questions that arise in connection with the principle of trust: firstly, in what cases is there a reason to trust, and, secondly, where is there a reason to doubt? After addressing the meaning of the principle of trust, the paper examines the effect on liability in scenarios wherein the person who originally caused the threat acts out of negligence yet the threat caused by that person is actualised in the form of an act violating legal rights by another, realised in either delict of negligence or an intentional delict. Finally, the article presents the conclusion that it is important to investigate which element of the structure of delict the principle of trust belongs to.

scholarly journals Striking a balance: resolving conflicts between the duty of confidentiality and duties to third parties in genetics

Legal Studies ◽  
2018 ◽  
Vol 38 (4) ◽  
pp. 645-665
Author(s):  
Naomi Hawkins ◽  
Timon Hughes-Davies
Keyword(s):  
Family Member ◽  
Genetic Information ◽  
Family Members ◽  
Third Parties ◽  
Third Party ◽  
Legal Rights ◽  
Duty Of Care ◽  
Healthcare Practitioner ◽  
Party Family

AbstractGenetic information is relevant not only to the patient, but also to their family. Where a patient refuses to share that information with family members, then their legal rights may conflict. This paper focuses on that conflict between the rights of individuals and the rights of third parties. We first examine the nature of the duty of confidence as it applies in these circumstances, and the extent to which it can appropriately accommodate the familial nature of genetic information. We then consider the situations in which a healthcare practitioner might owe a third-party family member a tortious duty of care. We conclude that in most cases, there will be no duty owed to third parties, but that in certain limited circumstances, a duty of care should arise.

Civil Recourse Theory

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.

scholarly journals R. v. Imperial Tobacco Ltd.: More Restrictions on Public Authority Tort Liability

2012 ◽  
Vol 50 (1) ◽  
pp. 157
Author(s):  
Lewis N. Klar, Q.C.
Keyword(s):  
Supreme Court ◽  
Public Authority ◽  
Duty Of Care ◽  
Supreme Court Of Canada ◽  
Upper Canada ◽  
Tort Liability ◽  
Public Authorities ◽  
The Supreme Court ◽  
Regulatory Functions

Since 2001, it has become very difficult for claimants to successfully sue public authorities for their negligent conduct, particularly in relation to their regulatory functions. This primarily has been due to the refined duty of care formula established by the Supreme Court of Canada in Cooper v. Hobart and Edwards v. Law Society of Upper Canada. As a result of their 2011 R. v. Imperial Tobacco Ltd. decision, the Supreme Court of Canada has restricted even further the ability of private claimants to successfully sue governments for their regulatory failures.

3. Special duty problems: omissions and acts of third parties

2019 ◽  
pp. 49-59
Author(s):  
Kirsty Horsey ◽  
Erika Rackley
Keyword(s):  
Common Law ◽  
Third Parties ◽  
Third Party ◽  
Duty Of Care ◽  
The Third ◽  
The Common ◽  
Relationship Of ◽  
Special Duty

This chapter discusses the problem of when a duty of care arises in respect of negligent omissions, or for the actions of a third party. The common law takes the view that it would be too great a burden to impose liability upon a person for a mere omission, or for the actions of others. Despite this, duties can in fact be imposed in various ways, all of which focus on the reliance of the claimant upon the defendant. This can come about either by the previous conduct of the defendant, which induces reliance by the claimant that the defendant will continue to act in that way, or by reliance which comes out of a relationship of dependence between the parties. As regards third parties, a duty may arise where the defendant has control over or responsibility for the third party’s actions.

4. Special duty problems: omissions and acts of third parties

Tort Law ◽  
2017 ◽  
Author(s):  
Kirsty Horsey ◽  
Erika Rackley
Keyword(s):  
Third Parties ◽  
Third Party ◽  
Duty Of Care ◽  
Special Duty

This chapter examines two separate but closely linked concepts of liability for omissions and for the actions of third parties. The first section considers when and how the courts have found that a duty of care should be owed by defendants when the harm was the result of their omission, and the second explores the situations when a defendant may owe a duty in relation to the action(s) of a third party.

The Application of Presumptions to the Derivative forms of an Offence

1968 ◽  
Vol 3 (4) ◽  
pp. 562-578 ◽  
Author(s):  
S. Z. Feller
Keyword(s):  
Supreme Court ◽  
The State ◽  
Third Party ◽  
Legal Problems ◽  
The Supreme Court ◽  
State Of Israel

Both the facts of The State of Israel v. Siman Tov, and the solution adopted in that case by the Supreme Court, raise, it is felt, a number of legal problems which warrant particular attention.The respondent, Siman Tov, owner of a grocer's shop, sold goods worth IL. 6,000 on credit to someone called Pressman. When Siman Tov requested payment from Pressman, the latter offered him U.S. $4,000 which Siman Tov was to deposit with a third party of his own choice in return for a loan of IL. 12,000, on the understanding that Siman Tov would deduct the money owing to him from this last sum and hand over the balance of IL. 6,000 to Pressman. Siman Tov accepted the offer and received from Pressman a package containing 4,000 ostensibly genuine dollar banknotes. He then approached a neighbour, Binat, who agreed to accept the dollars as security for a loan of the equivalent sum in Israeli pounds. On examining the package and finding that the dollars were counterfeit, Binat returned them to Siman Tov and refused to go on with the transaction. Siman Tov for his part had believed the notes to be genuine until Binat's disclosure.

9. The doctrine of anticipation:

2015 ◽  
Author(s):  
Ben McFarlane ◽  
Nicholas Hopkins ◽  
Sarah Nield
Keyword(s):  
Supreme Court ◽  
Legal Rights ◽  
The Supreme Court ◽  
The Creation ◽  
The Impact ◽  
Academic Debate

All books in this flagship series contain carefully selected substantial extracts from key cases, legislation, and academic debate, providing able students with a stand-alone resource. This chapter describes how equitable interests may arise through the application of the maxim ‘equity looks on as done that which ought to be done’. The acquisition of equitable rights through this maxim is attributed to the decision in Walsh v Lonsdale. The doctrine of anticipation applies where parties enter a specifically enforceable contract for the creation or transfer of legal estates and interests in land. The doctrine is important in identifying the rights and duties of parties during the course of the transaction. The impact of the doctrine is to develop equitable proprietary rights mirroring the legal rights that ‘ought’ to be granted. Where the effect of the doctrine is to separate legal and equitable entitlement to the same estate, a trust is imposed. The nature of the trust is on usual and its operation has recently been scrutinized by the Supreme Court.

Courts, the Law, and LGBT Politics in India

2020 ◽  
Author(s):  
Saatvika Rai
Keyword(s):  
Supreme Court ◽  
Legal Reform ◽  
Well Being ◽  
Legal Rights ◽  
Lgbt Rights ◽  
High Court ◽  
The Supreme Court ◽  
Lgbt Community ◽  
The Right ◽  
Hiv Aids

In India, Section 377 of the Indian Penal Code (IPC) criminalized sodomy (penile nonvaginal sexual acts) in 1860 during British colonial rule. Under this law and the traditional cultural norms, the LGBT community faced harassment and violence from the police, medical establishment, religious and conservative organizations, and families. The Indian queer movement mobilized in the early 1990s, primarily through activism for legal reform. Criminalization of sodomy prevented the LGBT community from freely mobilizing in public spaces, reporting acts of violence and harassment, and coming forth for testing and treatment of HIV/AIDS, and therefore was an impediment to their health and well-being. LGBT rights groups challenged the constitutionality of Section 377 on the basis of violating the right to equity (Article 14), nondiscrimination (Article 15), freedom (Article 19), and life and privacy (Article 21). Decriminalization of Section 377 has been a long, three-decade battle in the courts involving multiple judicial rulings. In 2009, the Delhi High Court decriminalized sodomy and declared Section 377 unconstitutional. The ruling was challenged by conservative and religious groups in the Supreme Court for going against social norms, threatening the institution of marriage, and promoting homosexual practices that would increase the spread of HIV/AIDS. In 2013, the Supreme Court heard the case, overturned the High Court ruling, and recriminalized Section 377. The Court declared that Section 377 was constitutional and applied equally to all persons. Thereafter, the Supreme Court passed three other judgments that directly impacted Section 377: It expanded the rape laws under Section 375 of the IPC to include penile nonvaginal acts (2013), provided legal rights to the transgender community as a nonbinary third gender (2014), and established the right to privacy under the Constitution (2017). The Supreme Court reassessed its decision, and on September 6, 2018, decriminalized Section 377 in a historic judgment. Legalizing queer sexuality was a positive step forward., yet considerable legal reform is still needed. The LGBT community still lack civil rights such as marriage, adoption, tax benefits, inheritance, and protection in the workplace. LGBT rights mobilization through the Indian courts has evolved from a focus on HIV/AIDS and health to broader human rights and privileges as equal citizens.

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