MiFID I MiFID II and private law: towards a European principle of civil liability?

Author(s):  
Marnix W. Wallinga
Keyword(s):  
2020 ◽  
Vol 11 (3) ◽  
pp. 208-246
Author(s):  
David Messner

Abstract In European private law, operators of industrial facilities, power plants and other sites using special substances or procedures are made responsible for harm caused by pollution even where it is doubtful that such harmdoing is unreasonable or could have been foreseen. Analysing both fault-based and strict liability, the author discusses legal bases for this liability and its justification in European jurisdictions.


Author(s):  
Stuart Bell ◽  
Donald McGillivray ◽  
Ole W. Pedersen ◽  
Emma Lees ◽  
Elen Stokes

This chapter focuses on the torts—or civil wrongs—traditionally relied on in environmental litigation: private and public nuisance, trespass, negligence, and the rule in Rylands v. Fletcher. It discusses and outlines statutory nuisance and various instances of statutory civil liability, some of which go beyond providing remedies for individuals and provide for wider environmental clean-up. Traditionally, private law has attempted to serve the function of controlling environmental damage. However, the chapter shows that the similarity is often superficial; the essential characteristic of private law is to regulate relationships between individuals by the balancing of individual interests. It concludes by briefly considering the EU Environmental Liability Directive, which has some similarities with private law remedies but is primarily an administrative mechanism for environmental remediation in defined situations.


2005 ◽  
Vol 23 (1) ◽  
pp. 135-173
Author(s):  
Micheline McNicoll

An exhaustive review of our case law is required for a proper understanding of municipalities' civil liability for offences and quasi-offences. It appears indeed that there is no other alternative since, on one hand, the legislator is mute on number of important relevant questions and, on the other hand, municipalities, are governed by rules of public law. Our review covering a period of about eighty years, contains an analysis of the three « schools of thought » that succesively exerciced considerable influence upon our court decisions. The different « schools of thought » naturally emerged from the constant opposition of public and private law divided by a boundary line subject to fluctuation.


Author(s):  
Chaim Saiman

This chapter focuses on fiduciary principles at work in classical Jewish law. Using modern (Western) legal concepts, it places disparate halakhic rules into a rubric not found in classical Jewish legal sources. The discussion proceeds by examining the origins of fiduciary concepts in the Mishnah and how they fit into the larger system of Jewish civil liability. From there, the chapter considers fiduciary rules within the laws of bailments, guardianship fiduciary duties in agency and partnership law. The moves to contrast the relatively minimal duties of private law fiduciaries with the far more expansive obligations incumbent upon surrounding public fiduciaries, and concludes with a tentative account of the differences between Jewish and common law perspectives on fiduciary law.


Civil wrongs occupy a significant place in private law. They are particularly prominent in tort law, but equally have a place in contract law, property and intellectual property law, unjust enrichment, fiduciary law, and in equity more broadly. For example, some tort theorists maintain that tort law is best understood as a (or perhaps the) law of civil wrongs, and some contract law theorists maintain that breach of contract is a civil wrong. Civil wrongs are also a preoccupation of leading general theories of private law, including corrective justice and civil recourse theories. According to these and other theories, the centrality of civil wrongs to civil liability shows that private law is fundamentally concerned with the expression and enforcement of norms of justice appropriate to interpersonal interaction and association. Others, sounding notes of caution or criticism, argue that a preoccupation with wrongs and remedies has meant neglect of other ways in which private law serves justice, and ways in which private law serves values other than justice. This book explores the nature of civil wrongs, their place in private law, and their relationship to other forms of wrongdoing. It should be of broad interest to lawyers and legal theorists as well as moral and political theorists.


2021 ◽  
Vol 21 (2) ◽  
pp. 217-244
Author(s):  
HELMUT KOZIOL

The article of one of the most prominent contemporary representatives of “bewegliches System” conception of private law regulation provides a thorough examination of factors influencing the leading approachs to assessment of fault in german speaking jurisdictions. The author comes to conclusion that unconditional adherence to unified (either subjective or objective) approach shall not attend to the ends pursued by particular intitutions aggregated under the name of civil liability, whereas the ethically underpinned concept of liability requires subjective approach as a general rule for noncontractual liability.


Author(s):  
Edijs Brants ◽  

In this article, the author analyses the burden of proof in determination of fault-based liability. The main focus is placed on the first prerequisite of civil liability – fault, which can be defined as non-compliance of the factual conduct with the required standard of care (in form of negligence or intent). Currently, the aspect of burden of proof regarding fault is quite unclear in Latvian private law. Therefore, in this article the author answers the fundamental question: which party has the legal duty to prove the prerequisite “fault” (or its absence) according to the Civil Law? Additionally, the author will also outline the peculiarities of burden of proof in both tort law and contract law.


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