Third party losses in a comparative perspective
Three short lectures in honour of W.H.V. Rogers (original) (raw)
Related papers
G. Alpa - General Remarks on Civil Liability in the European Context
This article considers the evolution of the civil liability system in Europe from the perspective of the establishment and application of rules deriving from regulations and directives that define special types of torts. Neither the EU rules nor the principles developed by the Court of Justice always identify all the necessary components of the tortious act. There are cases in which certain elements are prescribed, and others which are left to the national courts to establish. Furthermore, there are instances in which the case configured by the EU rules is complete but where the national legislators are accorded a certain leeway to fill in the regulatory gaps. National rules are not always uniform and, thus, are not without ambiguity. For this reason, attempts have been made to standardise the governance of civil liability, and the models proposed to break the impasse are still relevant. But time moves on, and the standardisation process is lagging behind the ever-increasing pace of change in EU law.
I. Introduction: European Tort Law 2012
European Tort Law Yearbook, 2013
The aim of these short introductory remarks is to highlight some of the noteworthy developments in European tort law in 2012 that are discussed in more detail in the country reports that make up the bulk of this Yearbook. The presentation follows a tripartite plan, with legislative developments considered first, then major cases, and lastly important scholarly publications.
Oxford University Press: A landmark research project in the harmonization of European Private Law - attempting to codify common principles of the law of tortious liability Provides a framework for the future development of national and private international law The Study Group on a European Civil Code has taken upon itself the task of drafting common European principles for the most important aspects of the law of obligations and for certain parts of the law of property in movables which are especially relevant for the functioning of the common market. Like the Commission on European Contract Law's Principles of European Contract Law, the results of the research conducted by the Study Group on a European Civil Code seek to advance the process of Europeanisation of private law. Among other topics the series tackles sales and service contracts, distribution contracts and security rights, renting contracts and loan agreements, negotiorum gestio, delicts and unjustified enrichment law, transfer of property, and trust law. The principles furnish each of the national jurisdictions a grid reference. They can be agreed upon by the parties within the framework of the rules of private international law. They may provide a stimulus to both the national and European legislator for moulding private law. Beyond this, they aim to further discussion about the creation of a European Civil Code, or a Common Frame of Reference in the area of patrimonial law, by submitting a concrete model. The Principles of European Law are published in co-operation with Bruylant (Belgium), Sellier (Germany), and Staempfli Publishers Ltd. (Switzerland). Readership: Scholars of private law harmonization in Europe, EU Law and the law of tort/delict, legislators working in the field of tortious liability
The European Law of Torts, Case Study: Regulation no. 864/2007 of the European Union
The purpose of this paper is to provide readers and third persons with general knowledge on the notion of non-contractual liability, in what aspects non-contractual liability it is distinguished from contractual and criminal liability, in what aspects non-contractual liability it is similar compared to contractual liability, which law is applicable to regulate non-contractual obligations, what rules apply to set out the competent court to issue decisions on cases where the subject-matter is non-contractual obligation etc. Special and exclusive focus has been given to clarify the principle of autonomy of the will of the parties and the principle "Lex loci delicti comissi", all based on Regulation no. 864/2007 of the European Union of 11th July 2007, on the law applicable to non-contractual obligations, otherwise known as "EU Rome II".
2020
Europarecht ‒ Handbuch für die deutsche Rechtspraxis (European Law – Handbook for German Legal Practice), 4 edition, Baden-Baden (Nomos), in print (co-edited with Stefan Kadelbach and Reiner Schulze) Reviews of previous editions: Schladebach, (2016) Deutsches Verwaltungsblatt (DVBl) 629 Laubinger, (2015) Fachbuchjournal 49-51 Preis, (2015) Neue Zeitschrift für Sozialrecht (NZS) 942 Bieler, (2015) Die Personenvertretung (PersV) 200 Petzold, (2015) Europarecht (EuR) 258-259 Ruffert, (2015) Thüringer Verwaltungsblätter (ThürVBl) 180 Zimmermann, (2015) Stadt und Gemeinde 170 Schmitz, (2015) Der Landkreis 290 Schladebach, (2016) Deutsches Verwaltungsblatt (DVBl) 629 Reiner, (2015) Zeitschrift für Arbeitsund Sozialrecht (ZAS) 200 Egger, (2015) Zeitschrift für Beihilfenrecht (BRZ) 194-195 Meier, (2015) Arbeitsrechtliche Entscheidungen (AE) 49-50
Principles of European Law – Unjustified Enrichment (PEL Unj. Enr.)
Oxford University Press: A landmark research project in the harmonization of European Private Law - attempting to codify common principles of the law of Unjustified Enrichment Provides a framework for the future development of national and private international law The Study Group on a European Civil Code has taken upon itself the task of drafting common European principles for the most important aspects of the law of obligations and for certain parts of the law of property in movables which are especially relevant for the functioning of the common market. Like the Commission on European Contract Law's Principles of European Contract Law, the results of the research conducted by the Study Group on a European Civil Code seek to advance the process of Europeanisation of private law. Among other topics the series tackles sales and service contracts, distribution contracts and security rights, renting contracts and loan agreements, negotiorum gestio, delicts and unjustified enrichment law, transfer of property, and trust law. The principles furnish each of the national jurisdictions a grid reference. They can be agreed upon by the parties within the framework of the rules of private international law. They may provide a stimulus to both the national and European legislator for moulding private law. Beyond this, they aim to further discussion about the creation of a European Civil Code, or a Common Frame of Reference in the area of patrimonial law, by submitting a concrete model. The Principles of European Law are published in co-operation with Bruylant (Belgium), Sellier (Germany) and Staempfli Publishers Ltd. (Switzerland). Readership: Scholars of private law harmonization in Europe, EU Law and the law of unjust enrichment, legislators working in the field of unjust enrichment
“Towards a European Law of Unjustified Enrichment?”
in Osservatorio del Diritto civile e commerciale, 2012, pp. 113-133, 2012
Though historically recent, a European law of unjustified enrichment is already existing and embraces both contractual and extra-contractual restitution, which however are governed by different rules and shall not therefore lose their own specificity. In contractual restitution, the remedy is based on the general principle of unjustified enrichment (both in civil and in common law by now) and has a very large field of application: unlike the German model followed by the DCFR, distinguishing between avoided and terminated contracts is not necessary from the point of view of restitution of performances rendered by the parties (as demonstrated by the CESL), nor is convenient elaborating further sets of rules for the case of contractual voidness or withdrawal. In extra-contractual restitution, the Directive 2004/48/EC relating to the protection of intellectual and industrial property has provided for two different remedies (against infringement). The first, i.e. the payment of a lump sum equal to reasonable royalties or fees, is but a restitution of unjustified enrichment according to the general principle of law (though English courts have regarded it as relating to damages). The second, i.e. account and disgorgement of profits gained by the wrongdoer, however, is not properly based on the same general principle of law, because such profits can by definition exceed the claimant's expenses: nevertheless, this restitutionary remedy, which is definitely established in English common law, can be granted by civil law as well, since it is but the action against the negotiorum gestor which has been foreseen by Roman tradition.
European Tort Law - An Integrated or Compartmentalized Approach?
The existing modest body of European tort law is, by necessity, an organically grown set of various rules, entered into force as a result of piecemeal legislative effort, sometimes of a contradictory nature in practice, and always lacking the dogmatic depths and overarching aspirations that national systems of private law tend to have. Working with this material necessitates a compartmentalized approach. By addressing the policy issues involved in each of these torts one by one, the European Union can make harmonized tort law more attainable. Rather than discussing the intricacies of tort theory, the quest should be aimed at finding a concrete balance between the interests of those involved in specific torts - businesses, consumers, and the insurance industry. In this paper I try to demonstrate that such an approach would take us away from projects aimed at restating 'Principles' and would lead to a more compartmentalized approach. Social and cultural divergence and differen...
Learned Hand in Europe: a Study in the Comparative Law and Economics of Negligence
When investigating the possibilities of uniform European private law, questions regarding unity and diversity of legal concepts emerge. Aim of this paper is to indicate how Law and Economics can contribute to the existing views on this matter, thereby focussing more on unity than on diversity. The branch of Law and Economics that deals with the comparison of legal systems and concepts is known as comparative Law and Economics. Researchers from this field have spent ample attention to the possibility that European unity of law can be reached through legal transplants, where courts transplant a concept from another legal system in their own legal system. A second approach within comparative Law and Economics is the common core approach, where Law and Economics helps in identifying legal concepts that might have different names or formal requisites in different legal systems, but that in practice solve a similar case in a similar manner. In section 2, the main differences between common law and civil law are discussed from a Law and Economics point of view. These differences are often regarded as the main obstacles in reaching uniform private law. In section 3, the comparative Law and Economics approach will be discussed in greater detail and the common core approach will be advocated. In section 4, the legal concept of negligence and the comparable concepts such as Fahrlässigkeit and onzorgvuldigheid will be presented as an example of a common core.