On the Social and Political Functions of Norms on Non-Contractual Liability (Russian) (original) (raw)

Broadly summarized, there are situations for which it does not make sense to expect individuals at large to take precaution for or bear the risk. Those situations for instance are actions under wrong assumptions of the indivudaual as to valid agreements being in place, and situations in which a relatively broad group of people is similarly affected. In civil law countries, the solutions to these situations are typically summarized under the general name of illicit enrichment and tort law. In contrast, the situations are, in this article, structured taking their origins as a basis, namely, on the one hand, contractual actions which did not reach the desired goal, for instance because the planned contract failed, and, on the other hand, attempts to ensure a certain playing field is in place in certain respects, for instance by protecting certain goods like the ownership, the safety against product liability, and reimbursement claims in case of preventing illicit action. Such claims, in turn, are based upon unauthorized agency (in the translation of the Russian Civil Code by Osakwe). As an aside and interestingly, unauthorized agency is also regulated in Art. 990 ss Russian Civil Code but almost never applied in Russia. Interestingly, the features discussed are regularly associated with standards of care and their violation. The underlying belief in the present discussion is that if individual standards of care are taken as a basis, efforts that are above average efforts are not appropriately rewarded but rather punished by an increase of standards.