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.

Minority Presidents in a Coalitional World

2018 ◽  
Author(s):  
Paul Chaisty ◽  
Nic Cheeseman ◽  
Timothy J. Power
Keyword(s):  
Coalition Formation ◽  
Cost Minimization ◽  
Analytical Framework ◽  
System Level ◽  
Current State ◽  
Key Concepts ◽  
Definition Of

This chapter summarizes the main parameters of coalitional presidentialism and the key concepts, definitions, explanatory frameworks, indicators, and propositions. It summarizes our understanding of coalitional presidentialism; the distinction between coalition formation and maintenance; the definition of coalitions; the multidimensional understanding of coalition management (the ‘presidential toolbox’); and an analytical framework that emphasizes the motivation of presidents to achieve cost minimization under constraints determined by system-level, coalition-level, and conjunctural factors. It also summarizes our main empirical findings: (1) the characteristics of presidential tools, (2) the substantive patterns of their deployment, (3) the factors that shape the costs of using these tools, (4) the actual (observed) costs of using them, and (5) the potential for imperfect substitutability of these tools. Finally, it concludes with some reflections on the current state of the research on comparative presidentialism.

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 Towards the determination of capabilities relevant for expert thinking

2006 ◽  
Vol 38 (1) ◽  
pp. 45-59
Author(s):  
Zora Krnjaic
Keyword(s):  
Complex Nature ◽  
Crystallized Intelligence ◽  
Domain Specific ◽  
Abstract Thought ◽  
Key Concepts ◽  
Definition Of ◽  
Systematic Education ◽  
Special Relevance ◽  
Complex Manner

The paper starts from the assumption that expert thinking is a complex manner of thinking of higher order, comprising higher mental functions and complex capabilities based on deep structures and knowledge patterns. It is a domain-determined and specialized thinking developed through systematic education. Particular aspects of ability, selected for this study, primarily concern the relation between abilities and knowledge and the relation between general and specific abilities. Particular emphasis was laid on the key concepts of the theories presented, relevant for the study of the complex nature of expert thinking. Special attention was paid to mediated intelligence and the process of systemogenesis of knowledge, Katel?s definition of crystallized intelligence, Gardener?s work on multiple intelligences in the context of knowledge and experience as well as Sternberg?s two-facet subtheory. The capability for abstract thought and the ability to select what is important as well as the domain of relevant specific capability are assumed to be of special relevance for understanding expert thinking and, as such, they were articulated and examined. Expert thinking-abstract, specialized and domain-specific, seems to be based on general and specific capabilities and their interaction.

scholarly journals Towards a Clearer Definition and Understanding of "Indigenous Community" for the Purposes of the Intellectual Property Laws Amendment Bill, 2010: En Exploration of the Concepts "Indigenous" and "Traditional"

2017 ◽  
Vol 13 (4) ◽  
pp. 126
Author(s):  
Sunelle Geyer
Keyword(s):  
Intellectual Property ◽  
United Nations ◽  
South African ◽  
Indigenous Communities ◽  
Indigenous Community ◽  
Key Concepts ◽  
The United Nations ◽  
Definition Of

Although "indigenous" and "traditional" are key concepts in the Intellectual Property Laws Amendment Bill of 2010, they are not defined therein. The Bill does, however, provide a definition of "indigenous community" that is very clear as to where one should look for indigenous communities for the purposes of this Bill, and that there is likely to be a plurality of such communities, but is very vague as to which groups exactly will qualify as being indigenous.  It is uncertain whether or not the current vague wording of the definition would be strong enough to widen the much narrower understanding of indigenousness prevailing in other South African legislation, the legislation of selected other jurisdictions, and the United Nations. Recommendations are made as to how the definition of an "indigenous community" may be rephrased to address these uncertainties more clearly.

scholarly journals The dynamics of Pecking Order and Agency theories on crowdfunding concept as alternate finance for start-up businesses

2020 ◽  
Vol 5 (1) ◽  
pp. 1-13
Author(s):  
Francis Kwaku Kuma ◽  
Mohd Effandi Yosuff
Keyword(s):  
Theoretical Aspect ◽  
Review Of Literature ◽  
Pecking Order ◽  
Practical Applications ◽  
Theoretical Perspectives ◽  
Start Up ◽  
Key Concepts ◽  
Definition Of ◽  
The Relationship

The study explores the relevance of theoretical aspect of crowd financing by reviewing the defining literature on Pecking Order and Agency theories in details and evaluates applications of these theories based on crowdfunding. In particular, the study critically considers the key concepts of these theories and how they could be applied in practical terms. The study decides to adopt Pecking Order and the Agency theories because they provide valuable insights into the trend of crowdfunding streams available to firms. The paper primarily adds to existing literature on the broader definition of crowdfunding as a concept and then examine the relationship between this concept and its practical applications to the chosen theories. The study combines these theoretical perspectives with the practical aspects of startup companies raising finance using the crowd because a broad reading of the literature tends to point to in this direction. The key concepts of these theories are critically considered and the study is conducted in the form of review of literature and expression of opinion. Citation: author1, author2, author3. The dynamics of Pecking Order and Agency theories on crowdfunding concept as alternate finance for start-up businesses. 2020; 4(1): 1－13.Received: (February 2, 2020) Accepted: (March 31, 2020)

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.

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.　

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.

Causal Apportionment of Tort Liability: An Efficient Approach

2016 ◽  
Vol 12 (1) ◽  
Author(s):  
Hugo A. Acciarri ◽  
Fernando Tohmé ◽  
Andrea Castellano
Keyword(s):  
Economic Analysis ◽  
Causal Reasoning ◽  
Tort Law ◽  
Tort Liability ◽  
Mainstream Economic ◽  
Efficient Approach ◽  
Alternative Framework ◽  
Standard Conception

AbstractMainstream economic analysis of Tort Law assumes that efficiency cannot be formally assured by allocating liability according to causal apportioning. In this paper we will present some ways to escape from the full scope of this claim. We start by reviewing the standard conception of causality in the economic analysis of Tort Law, to show how some underlying assumptions influence the currently held view on the relation between causal apportioning and efficiency. Then, we revisit those assumptions to see how plausible they actually are. In the light of this discussion we introduce an alternative framework of causal reasoning in Tort Law. We will show how our model yields a way of allocating liability in terms of a causal apportioning rule. The outcomes obtained through this procedure are closer to efficiency than those prescribed by the mainstream.

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