scholarly journals CAUSAL UNCERTAINTY: ALTERNATIVE CAUSATION IN TORT LAW

TEME ◽  
2020 ◽  
pp. 033
Author(s):  
Mihajlo Cvetković
Keyword(s):  
Essential Element ◽  
Tort Law ◽  
Causal Link ◽  
Tort Liability ◽  
Causal Uncertainty ◽  
Fair Compensation

The causal link between the tortfeasor’s unlawful act and the resulting damage is an essential element of tort liability. There are situations in tort law practice where singular damage has more than one potential cause, so it is important to determine which one is legally relevant. In those situations, it is hard for the claimant to identify the tortfeasor. Moreover, proving the causal link is difficult or almost impossible. On the contrary, the tortfeasor can successfully object that the damage cannot be attributed to him/her. European courts and doctrine have developed theories about alternative causation firstly by addressing asbestos litigation. This paper presents solutions from English, Belgian, French, German and Dutch tort law. Although they all strive for the same goal - fair compensation, the diversity of methods and outcomes is surprising. The end of the paper is devoted to the Principles of European Tort Law (PETL), where optimal suggestions on how to overcome causal uncertainty are presented.

scholarly journals Mauritian Tort Law

2020 ◽  
pp. 184-203
Author(s):  
Goran Georgijević
Keyword(s):  
Civil Law ◽  
Tort Law ◽  
Case Law ◽  
Causal Link ◽  
Civil Code ◽  
Tort Liability ◽  
French Case ◽  
Harmful Event

According to the general tort law of Mauritius (articles 1382 through 1384 of the Mauritian Civil Code), three conditions must be met before tort liability may be implemented, namely the existence of harm, the existence of a causal link, and the existence of a harmful event. This paper contains an analysis of the fundamentals of the tort law of Mauritius, which is based on Mauritian case law and French case law and French doctrine, which are considered a persuasive authority in Mauritian Civil Law.

Structure, Function, and Tort Law

2020 ◽  
Vol 13 (1) ◽  
pp. 31-79
Author(s):  
Dan Priel
Keyword(s):  
Structure Function ◽  
Tort Law ◽  
Structure And Function ◽  
Vicarious Liability ◽  
Causal Uncertainty ◽  
Popular View ◽  
And Function

AbstractA popular view among tort theorists is that an explanation of tort law must take account its “structure,” since this structure constitutes the law’s “self-understanding.” This view is used to both criticize competing functional accounts of tort law, especially economic ones, that are said to ignore tort law’s structure, and, more constructively, as a basis for explaining various tort doctrines. In this essay, I consider this argument closely and conclude that it is faulty. To be valid, one needs a non-question begging way of identifying the essence of tort law. I argue that law’s “self-understanding” can only make sense if it means the understanding of certain people. Examining those, I conclude that the claim of structuralists is false, for there are many people who take its function to be central. I then further show that if one wishes to understand the development of tort law’s doctrine one must take both structure and function into account. I demonstrate this claim by examining the development of the doctrine dealing with causal uncertainty and vicarious liability.

scholarly journals Treating Wrongs as Wrongs: An Expressive Argument for Tort Law

2018 ◽  
Vol 10 (2) ◽  
pp. 405-447 ◽  
Author(s):  
Scott Hershovitz
Keyword(s):  
Criminal Law ◽  
Tort Law ◽  
Tort Reform ◽  
Corrective Justice ◽  
Social Standing ◽  
Tort Liability ◽  
Criminal Punishment ◽  
Expressive Function ◽  
The Social ◽  
The Way

AbstractThe idea that criminal punishment carries a message of condemnation is as commonplace as could be. Indeed, many think that condemnation is the mark of punishment, distinguishing it from other sorts of penalties or burdens. But for all that torts and crimes share in common, nearly no one thinks that tort has similar expressive aims. And that is unfortunate, as the truth is that tort is very much an expressive institution, with messages to send that are different, but no less important, than those conveyed by the criminal law. In this essay, I argue that tort liability expresses the judgment that the defendant wronged the plaintiff. And I explain why it is important to have an institution that expresses that judgment. I argue that we need ways of treating wrongs as wrongs, so that we can vindicate the social standing of victims. Along the way, I consider the continuity between tort and revenge, and I suggest a new way of thinking about corrective justice and the role that tort plays in dispensing it. I conclude by sketching an agenda for tort reform that would improve tort’s ability to serve its expressive function.

scholarly journals German Transplants in Estonian Tort Law: General Duties to Maintain Safety

2021 ◽  
Vol 30 ◽  
pp. 132-139
Author(s):  
Janno Lahe
Keyword(s):  
Tort Law ◽  
Case Law ◽  
Tort Liability ◽  
Legal Practice ◽  
Remarkable Change ◽  
General Duty ◽  
Relevant Case ◽  
German School ◽  
Legal Thinking ◽  
The Individual

The jurisprudence and case-law approach of German tort law – and, more broadly, German-school legal thinking in general – has found its way into Estonian case law on torts and into Estonia’s scholarly texts on jurisprudence. From among the catalogue of transplants from German tort law that have reached Estonian law or legal practice, the paper focuses on one whose importance cannot be overestimated: the concept of tort liability based on breach of the general duty to maintain safety. This domain has witnessed remarkable change since the beginning of the 2000s, when an analogous concept of liability was still unfamiliar to many Estonian lawyers. The article examines whether and to what extent the concept of liability based on the general duty to maintain safety has become recognised in Estonian legal practice in the years since. Also assessed is the relevant case law to date, for ascertainment of whether any adoption of an equivalent concept of liability has been successful and, in either event, what problems remain to be resolved. The importance of this issue extends far beyond that of individual questions: the recognition of general duties to maintain safety affects our understanding of the very structure of tort law, of that of the general composition of tort, and of the connections that link the individual prerequisites for tort liability. Furthermore, this constellation influences our thought in the field of tort law more generally and our approach to the cases emerging in real-world legal practice.

MODERN THEORIES OF WRONGFULNESS: THE SWISS APPROACH

2021 ◽  
Vol 21 (1) ◽  
pp. 219-253
Author(s):  
S.K. STEPANOV
Keyword(s):  
Tort Law ◽  
Tort Liability ◽  
Key Concepts ◽  
Definition Of

This paper provides an overview of key concepts of wrongfulness in Tort law. The Swiss approach to the definition of wrongfulness has been analyzed. In addition, the article discusses the subjective and objective theories of wrongfulness. The author addresses the modern concepts of wrongfulness, allowing to achieve maximum flexibility in establishing tort liability.

Distribution of Risk of Harm in Delictual Responsibility From the Standpoint of Economic Analysis of Law

2020 ◽  
Vol 27 (2) ◽  
pp. 119-130
Author(s):  
Maryna Velykanova
Keyword(s):  
Property Rights ◽  
Economic Analysis ◽  
Risk Sharing ◽  
Basis Property ◽  
Cost Effective ◽  
Well Being ◽  
Tort Law ◽  
Tort Liability ◽  
Economic Analysis Of Law ◽  
Systematic Analysis

Damage to property and (or) non-property rights of persons occurs quite often. The right to compensation for such damage is indisputable. However, civil doctrine ambiguously addresses the issue of risk sharing in tort obligations. Therefore, the purpose of this paper is to discuss approaches to the distribution of risk of harm in delictual responsibility and to determine their effectiveness from an economic and legal standpoint. The paper, based on economic and systematic analysis using dialectical, comparative, logical-dogmatic and other methods, including economics, describes the approaches to determining the purpose of tort law and its ability to ensure effective distribution of risk of harm. It has been proven that tort law can have direct regulatory consequences by restraining behaviour and sharing risks. It is concluded that the task of tort law is the optimal distribution of risk of harm between the perpetrator and the victim and to ensure the implementation of risky activities only if its social value justifies the risk. Based on the economic analysis of tort law, it has been substantiated that the distribution of the risk of damage in tort liability is carried out through the institutions of insurance and liability. Insurance is cost-effective when it comes to compensation for damage. However, only liability, in addition to the function of compensation, can also perform the function of preliminary prevention of harm. Therefore, the risk of causing harm in tort liability is mainly borne by the person who caused the damage. In obligations to compensate for damage caused by a source of increased danger, a person who on the appropriate legal basis (property rights, other property rights, contracts, leases, etc.) owns a vehicle, mechanism, other object, the use, storage or maintenance of which creates an increased danger, bears such risk even in the absence of guilt in causing harm. The grounds for imposing such risk on the victim are his intention or force majeure. It is this approach to the distribution of harm risk in tort liability that is fair and cost-effective and contributes to public well-being

Law of Torts

Japanese Law ◽  
2021 ◽  
pp. 191-211
Author(s):  
Hiroshi Oda
Keyword(s):  
Burden Of Proof ◽  
Tort Law ◽  
Case Law ◽  
Civil Code ◽  
Tort Liability ◽  
The Law ◽  
General Provision

Tort is part of the Law of Obligations. Provisions on tort liability are found in Book Three, the Law of Obligations, of the Civil Code. There is only a single general provision on tort. The legislature expected rules to develop out of case law. A person who intentionally or negligently infringes upon others’ right or interests protected There is a body of case law which sets out details of tort law such as causation and fault. There have been cases where the shift of the burden of proof was at issue.　

5. Liability for Damage Caused: Causation and Remoteness

2019 ◽  
pp. 202-239
Author(s):  
Simon Deakin ◽  
Zoe Adams
Keyword(s):  
Case Law ◽  
Causal Link ◽  
Tort Liability ◽  
Extensive Discussion ◽  
Occupational Illness ◽  
Essential Ingredient ◽  
The Third ◽  
Illness And Disease ◽  
Complex Cases

This chapter examines the third element of the tort of negligence, namely, causation. The defendant’s carelessness must be shown to have caused the loss or damage in question. The finding of a sufficient causal link is an essential ingredient in all forms of tort liability (with the exception of torts actionable without proof of damage). The discussions cover the nature of the causal inquiry; but-for causation; and remoteness of damage. There is extensive discussion of the Fairchild principle and the issue of causation in complex cases of liability for occupational illness and disease, with particular reference to the mesothelioma case law.

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.

5. Liability for Damage Caused: Causation and Remoteness

2013 ◽  
Author(s):  
Simon Deakin ◽  
Angus Johnston ◽  
Basil Markesinis
Keyword(s):  
Causal Link ◽  
Tort Liability ◽  
Essential Ingredient ◽  
The Third

This chapter examines the third element of the tort of negligence, namely, causation. The defendant’s carelessness must be shown to have caused the loss or damage in question. The finding of a sufficient causal link is an essential ingredient in all forms of tort liability (with the exception of torts actionable without proof of damage). The discussions cover the nature of the causal inquiry; but-for causation; and remoteness of damage.

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