When a Right is a Wrong. Compensation for Acts of Necessity (original) (raw)
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Compensation for Torts of Necessity: The Law and Economics View
The Italian Law Journal, 2019
This paper seeks to propose a new interpretation of the rules that envisage compensation, be it damages or an indemnity, when a person takes an action in a case of necessity. The person acting out of necessity will also take into account the sum of money that he will be required to pay if the necessary action is taken and this will consequently affect his choices. Moreover, the amount of the damages or indemnity will also have an effect on the choices that the victim will make. More specifically, it will be shown that in certain situations compensation should ideally be equal to the loss actually suffered by the victim while in others optimal compensation could even be a figure equal to zero and in any case not such as to cover the entire loss suffered by the victim. This incentive-based interpretation suggests that certain compensation rules that until now have been considered efficient by scholars of law and economics are actually inefficient.
Compensation for Necessary Harms
This paper examines the legal concept of necessity in the context of compensation for a harm involving an actor, an individual who benefits from the necessary harm who wasn't the actor, and a victim.
The Concept of Necessity. Some Remarks
Comparative Law Review
The article discusses the problem of the indeterminate defendant in European tort law systems and in the projects aiming to unify tort law in Europe, such as Draft Common Frame of Reference and Principles of European Tort Law. The given issue relates to a situation where there is a damage caused by one factor, yet upon available evidence one may indicate a few potential factors which might have led to the damage, but it cannot be ascertained which factor was the actual cause of it. The problem is addressed with reference to two scenarios. First, when there is a limited and known number of persons acting tortiously, each of whom potentially might have led to the damage, but only one of them had actually caused it. Second, when it is certain that one tortfeasor from the undetermined group of tortfeasors caused damage to some of the injured persons from the group of the injured persons, but it cannot be established precisely which tortfeasor caused damage to precisely which injured person. In comparative law analysis, one may find various attempts to deal with the given issue, which come from the balance of ratios given to different solutions, as well as the legal possibilities or obstacles in national tort law systems. The main possibilities are: all-or-nothing approach, joint and several liability, and proportional liability. Those solutions are discussed in article in more detail with conclusion that the bold proposition of proportional liability presented in Principles of European Tort Law seems to be the most appropriate.
The Morality of Compensation through Tort Law
Ratio Juris, 2023
In this paper, I will focus on the normative structure of tort law. Only by elucidating the point or rationale of holding the wrongdoer responsible to the victim can we understand the value of having tort law instead of establishing other mechanisms of redress, such as a social insurance scheme. Ultimately, I will argue that the value of interpersonal justice, which underlies tort law, might not suffice to fully justify it in a given community. It all depends on whether victims of accidents are able to vindicate their rights against wrongdoers on a regular basis. If social conditions make this unlikely, then the state might be morally required to implement other forms of compensation, either replacing tort law altogether or supplementing it with social insurance in cases where private justice mechanisms tend to fail more dramatically.
The Idea of Legal Responsibility
Oxford Journal of Legal Studies, 2013
The article analyses and reconstructs a broad idea of legal responsibility which underlies and normatively links tort law with the law of unjustified enrichment. The article's central proposition is that responsibility for damage caused and enrichment-responsibility are closely interrelated. Both aspects of obligations are equally an expression of corrective justice, and ultimately serve to protect the civil rights of citizens. It is shown that the idea of civil equality and the principle against unjustified enrichment require citizens to assume responsibility not only for the consequences of their misbehaviour, but also for the consequences of lawful actions that non-reciprocally endanger the rights of others. This can be seen particularly clearly in cases of necessity like Vincent v Lake Erie. Under current law, those cases fall in between the categories of unjustified enrichment and wrongs; in most legal systems, they are therefore regarded as particularly hard cases. Nevertheless, the liability of a person lawfully causing damage in a situation of necessity exemplifies the idea of legal responsibility, and thus helps in better understanding the law of non-contractual obligations. Methodologically, the article combines historical arguments derived from the late scholastic theory of restitution with a comparative analysis of Western legal systems and contemporary private law theory. This approach is designed to overcome the conceptual boundaries of national private laws on both sides of the English Channel; it may help to address difficult legal problems more appropriately.
The Compensation Principle in Private Law
2008
While the compensation principle has occupied a central position in modern private law, changing views of adequate conipensation have worked to modify its application across jurisdictions. Further, economic instrumentalist accounts have dismissed both the compensation principle and the influence of justice accounts in remedies law. In seeking to identify a more modern notion of the compensation principle, this Article suggests ways to merge elements of corrective and distributive justice into the compensation principle, without having to embrace economic instrumental concepts. In examining Anglo-Canadian common law jurisprudence, the compensation principle appears to be grounded upon the modern judicial desire to embrace a more regulatory role over affairs governed by private law. From a distinctly remedial perspective, it is legitimate for courts to advance some goals of distributive justice, while adhering to a formalist account of corrective justice as governing judicial practices. This approach will enable courts to prevent unjust distribution of entitlements while avoiding the pitfalls of excessive judicial activism.
Journal of European Tort Law, 2010
The article proposes a concept of 'non-contractual obligations' as a fundamental legal category for European private law. Non-contractual obligations are an internally coherent part of the law of obligations, and they are fundamentally different from contractual obligations. Unjustified enrichment and tort law should therefore not be treated as independent or opposed types of obligations. A fundamental aspect of this conception is that 'unjustified enrichment' should not be misunderstood as a distinctive legal category; rather, it is a reason for liability that is functionally and structurally comparable with concepts such as fault or individual responsibility which apply throughout the legal system as a whole. To clarify the distribution between contractual and non-contractual obligations, the interplay of contractual and non-contractual rules and principles in borderline areas such as pre-contractual negligence is analysed. (2010) 1 JETL Non-contractual obligations are not a well-established concept of European private law. The European law library contains many textbooks and treatises on contract law, 1 on tort law, 2 on restitution, 3 and on the law of obligations as a whole, 4 but no
Justifications and Excuses in the Economic Analysis of Tort Law
In the economic analysis of tort law, scant attention is paid to justifications and excuses. An injurer invoking a justification argues that he did not act wrongfully. Excuses imply that the injurer acted wrongfully, but that his act cannot be imputed to him. If torts are described in general terms, on an abstract level, the possible role of justifications and excuses is larger than if the tort is subjectively defined. After all, the specific circumstances of the case that could lead to the conclusion that the injurer should not be liable are already incorporated in a subjectively defined tort, so that there is no separate function for justifications and excuses anymore. In this paper I argue that the use of general, abstract norms is preferable to applying subjective concrete norms. This generalization saves on administrative costs, it might lead to a better allocation of resources and it can provide better care and activity incentives. In circumstances where the objective norm would lead to undesirable outcomes, due to the specific circumstances of the case, justifications can serve as a correction. I analyze force majeure, necessity, necessary self-defense, legal duty or legal authority, authorized legal order, permission of the victim, assumption of risk and acting in the general interest. I argue that most, but not all, justifications make economic sense. In situations where the general norm provides correct incentives but where the specific injurer at hand would not change his behaviour as result of specific circumstances, excuses might avoid liability and hence save on administrative costs. I analyze mental or physical disability or illness, excusable error regarding the law or the facts, self-defense with excessive force and unauthorized official order. I conclude that most of the analyzed excuses are problematic from an economic point of view.