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Journal articles on the topic 'Tortious liability'
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1
Hopkins, C. A. "Tortious Liability for Suicide." Cambridge Law Journal 49, no. 3 (November 1990): 392–94. http://dx.doi.org/10.1017/s0008197300122196.
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Zubitashvili, Nona. "Interrelation between tort liability and strict liability in cases of compensation for damages resulting from economic crime." Journal of Contemporary Law 2, no. 2 (November 10, 2023): 40–45. http://dx.doi.org/10.31578/jcl.v2i2.25.
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The relevance of the issue of the relationship between the doctrine of tort liability andstrict liability is caused by the decisions of the Supreme Court of Georgia in 2015 on two identicalcriminal cases of tax evasion, whereby the strict liability of the partner was used as the legal basis forcompensation of property damage, instead of tortious liability. This article discusses the principles ofvicarious liability and tortious liability in determining property liability resulting from economic crime.
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Terec-Vlad, Loredana. "Tortious Liability vs Contractual Liability. Comparative View." Journal for Ethics in Social Studies 5, no. 1 (September 2, 2022): 45–49. http://dx.doi.org/10.18662/jess/5.1/41.
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To speak of responsibility and accountability in human actions is to bring together two disciplines: philosophy and law. The society we live in is based on knowledge, one in which human values have transformed, relativism being an element that outlines certain justifications of the individual for their actions. The same is not the case in law, where everyone is accountable and responsible for their actions. In this paper we will bring to the forefront the tortious liability vs. contractual liability.
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Stankovic, Marko. "Tortious liability of legal entities." Pravo - teorija i praksa 32, no. 10-12 (2015): 35–47. http://dx.doi.org/10.5937/ptp1512035s.
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Grantham, Ross. "Company Directors and Tortious Liability." Cambridge Law Journal 56, no. 2 (July 1997): 259–62. http://dx.doi.org/10.1017/s0008197300081265.
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YOUNGS, RAYMOND. "Tortious Liability for Released Detainees." Howard Journal of Criminal Justice 50, no. 1 (January 5, 2011): 52–61. http://dx.doi.org/10.1111/j.1468-2311.2010.00627.x.
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Nemțoi, Gabriela, and Ciprian Gabriel Ungureanu. "Tortious Civil Liability in Environmental Law." European Journal of Law and Public Administration 8, no. 2 (December 20, 2021): 26–34. http://dx.doi.org/10.18662/eljpa/8.2/157.
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Tort liability consists in the obligation of the one who has committed an injury to indemnify the injured party. Tort liability is a legal operation which, according to the Civil Code, when an unlawful act causing damage is committed, the reverse means compensating the injured party. In the case of the environment, the one who harms is not always sanctioned, so in the case of this issue the legislator has developed a rather broad legislative framework. The common law has become applicable in the field of the environment based on the provisions of art. 135 para. (2) lit. e) of the Constitution, which stipulates that , which stipulates that , which stipulates that, the environment is an area that must have a legal protection so that the state maintains a permanent ecological balance. Rehabilitation of the environment is done by applying sanctions to those concerned. So the institution of tort liability is an instrument in the gear of environmental protection.
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Abdullah, Azrol, and Nazura Abdul Manap. "THE MALAYSIAN PERSPECTIVE ON IMPOSING CIVIL LIABILITIES IN ROAD ACCIDENTS INVOLVING AUTONOMOUS VEHICLE." UUM Journal of Legal Studies 12, Number 2 (July 5, 2021): 203–28. http://dx.doi.org/10.32890/uumjls2021.12.2.9.
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The advancement of artificial intelligence (AI) technology has become the fundamental catalyst in the research and development of autonomous vehicle (AV). AVs equipped with AI are expected to perform better than humans and forecasted to reduce the number of road accidents. AV will improve humans’ quality of life, such as creating more mobility for the elderly and disabled, increasing productivity, and creating an environmentally friendly system. Despite AV’s promising abilities, reports indicate that AV can go phut, causing road fatalities to the AV user and other road users. The autonomous nature of AV exacerbates the difficulty in determining who is at fault. This article aims to examine the ability of the existing legal framework to identify the person at fault so as to determine the tortious liability in road accidents involving AV. This article demonstrated that the existing legal scheme is insufficient to determine tortious liability in road accidents involving AV. This article explored the possibility of shouldering the liability on the manufacturer, the user, and even on the AV itself. This article also investigated alternative approaches that could be adopted to resolve issues on the distribution of tortious liability in road accidents involving AV. The outcome of this article could contribute to issues relating to the liability of AI.
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Kershner, Susan Maidment. "Children v. Parents: A New Tort Duty-Situation for Psychiatric Injury?" Israel Law Review 35, no. 1 (2001): 79–117. http://dx.doi.org/10.1017/s0021223700012097.
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SummaryRecognition of liability in negligence for personal injury, whether physical or psychiatric, is a question of public policy par excellence. In English tort law, public policy is a transparent judicial requirement in fixing liability even when negligence is established otherwise. In considering the tortious liability of a local authority to children in its care, the English House of Lords has, in obiter dicta, raised doubts as a matter of public policy concerning the enforceability of claims for damages by children against a parent for emotional neglect causing psychiatric injury. In Israel, by contrast, the Supreme Court recently extended tortious liability by enforcing the parental duty of care to children through a claim for psychiatric injury. So far Israeli law is unique in this development. Variations in judicial policy concerning the recognition of claims by children for psychiatric injury are considered here, in the contexts of English tort law, and Israeli, US and European human rights law.
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Abimbola Olalere, Fasilat. "Expanding Scope of English Law On Vicarious Liability And The Inevitability Of Conceptual Uncertainty." Kampala International University law journal 5, no. 1 (May 12, 2023): 158–73. http://dx.doi.org/10.59568/kiulj-2023-5-1-09.
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Vicarious liability is an English law principle that is rooted in antiquity. It entails the transfer the liability of a persons’ negligent or tortious action to another person as a result of the relation relationship existing between both parties. Traditionally, vicarious liability has usually been applied in instances where employee/employer relationship exists between the tortfeasor and the third party and when the tortious act occurred ‘in the course of employment’. Through a case law analysis, this paper examined how vicarious liability principle has transitioned beyond its traditional conception over the ages. For instance, the Wilson and Clyde Case infused the non-delegable duties dimension of vicarious liability. The paper adopts the doctrinal methodology through examination of primary sources such as case laws and secondary sources such as opinion of authors and other scholarly works on the topic. Different jurisprudence has been reflected in the interpretation of the vicarious liability principle in different cases. The study submits that the implication of the inconsistencies in the interpretation of the principle is the uncertainty which has been created as to the true state of the law on the subject.
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Caritj, Paul. "Tortious Interference with the Expectancy of Entitlement Benefits." University of Michigan Journal of Law Reform, no. 45.2 (2012): 455. http://dx.doi.org/10.36646/mjlr.45.2.tortious.
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This Note proposes a new tort to address employers' and their agents' increasing abuse of the Unemployment Insurance appeals process, which interferes with employees' expectancy of entitlement benefits. Though existing state Unemployment Compensation statutes sanction both unemployed workers claiming benefits and employers for making fraudulent statements, these provisions approach the issue of fraud too narrowly to combat this growing problem. Meanwhile, no existing remedy properly compensates victims of this sort of abuse, adequately deters abusive behavior by scaling the penalty to the harm, and is accessible to economically disadvantaged plaintiffs. As well as providing an analysis of the specific problem of abuse of the appeals process in the Unemployment Compensation arena, this Note also aspires to provide the framework for a compelling legal argument that such abuse should trigger tort liability in the hopes of easing the work of any public interest attorney interested in bringing such a suit. Although this Note focuses on Unemployment Insurance claims, the principles discussed are generally applicable to a variety of other entitlement benefit claims. Part I identifies the employer behavior that presents the need for a remedy in tort. Part II articulates the criteria for an adequate remedy. Part III examines potential legal remedies to the problem of abusive appeals by employers during the claim and appeals process and finds them inadequate to protect the pressing economic interests of claimants and society. Part IV proposes the recognition of a new tort to fill this gap, and details both the grounds for liability and the computation of damages flowing from this form of liability.
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Mulligan, Andrea. "A vindicatory approach to tortious liability for mistakes in assisted human reproduction." Legal Studies 40, no. 1 (October 14, 2019): 55–76. http://dx.doi.org/10.1017/lst.2019.19.
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AbstractMistakes in assisted human reproduction procedures such as IVF, egg, sperm and embryo donation are surprisingly common, but tortious liability for such mistakes has not been addressed in the courts of England and Wales, or Ireland. This paper presents an argument in favour of a vindicatory approach to tortious claims arising from mistakes, where the claimants are the parents of the resulting, healthy, child. Drawing on the analogous tort of wrongful pregnancy, the paper provides a vindicatory account of the case of Rees v Darlington Memorial Hospital, and argues that Rees signposts the correct approach for tortious claims arising from mistakes in assisted human reproduction. It is argued that while the law should not compensate ‘loss’ flowing from the birth of a child, parents should be entitled to an award of damages to vindicate their right to reproductive autonomy. The paper explores vindication of the right to reproductive autonomy through the tort of negligence, but argues that vindication may be more effectively achieved through the creation of a separate tort which is actionable per se, strict liability, and expressly focused on vindication rather than compensation.
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Olalekan, Omoola Sodiq. "AUTONOMOUS VEHICLES AND TORTIOUS LIABILITY: AN ISLAMIC PERSPECTIVE." Jurnal Syariah 26, no. 1 (May 22, 2018): 99–122. http://dx.doi.org/10.22452/js.vol26no1.5.
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Grantham, Ross, and Charles Rickett. "Directors' 'Tortious' Liability: Contract, Tort or Company Law?" Modern Law Review 62, no. 1 (January 1999): 133–39. http://dx.doi.org/10.1111/1468-2230.00196.
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Murphy, John. "Rethinking tortious immunity for judicial acts." Legal Studies 33, no. 3 (September 2013): 455–77. http://dx.doi.org/10.1111/j.1748-121x.2012.00256.x.
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This paper considers the immunity in tort enjoyed by superior court judges in England and Wales. It suggests, first, that the current level of immunity is set too high; secondly, that the reasons traditionally given for this level of immunity are overwhelmingly unconvincing and that, therefore, thirdly, a lesser degree of immunity (which allows judges to be exposed to potential liability under a modified version of the tort of misfeasance in a public office) would be the preferable way to proceed.
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Shepel, Tamara V. "CORRELATION OF CONTRACTUAL AND TORTIOUS LIABILITY OF A HEALTH-CARE ORGANISATION TO A PATIENT." Vestnik Tomskogo gosudarstvennogo universiteta. Pravo, no. 38 (2020): 153–62. http://dx.doi.org/10.17223/22253513/38/15.
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The Civil Code of the Russian Federation and legislation in the sphere of health care do not contain norms about the civil liability of a medical organisation to a patient. The issues of the correlation between these types of liability remain under-researched in the literature. There is no uniformity in judicial practice in resolving disputes in this area. The analysis of the literature and practice allows us to identify the distinctive features of contractual and tort liability of medical organisations. They include the imperative nature of norms on tort liability and dispositive nature of norms on contractual liability; contractual liability of a medical organisation to a patient is possible only if no harm to life or health is inflicted upon it - when such harm is inflicted, tort liability arises. The medical organisation's guilt or the patient's guilt in imposing contractual or non-contractual liability on a medical organisation is not the same. As a general rule, where there is a plurality of persons on the side of a medical organisation, joint and several liability arises in the event of non-contractual liability. The forms of contractual and non-contractual liability are different. It is generally accepted in the legal literature that liability for harm to a patient's health or life in the provision of paid medical services is in tort. However, due to the expanding scope of contractual regulation in medicine, the correctness of such provisions has come into ques-tion. It seems that the position on the priority of contractual liability of a medical institution has no legitimate basis (Art. 1084 of the Civil Code of the Russian Federation). In court prac-tice, regardless of the existence of a contract for the provision of paid medical services, in case of harm to the patient's health or life, the rules on torts are applied. The nature of increased liability for causing harm to a citizen's life or health stipulated by the contract is disputed in the literature. It appears that the contract for the provision of medical services may increase the amount of liability but may not change its nature, it remains a tort. As a rule, the issue of possible application of tort and contractual liability to a medical organisation at the same time is not specifically discussed in the literature. In court decisions holding a healthcare provider contractually liable, compensation for moral damage is referred to as a form of contractual liability along with compensation for damages and payment of a penalty. This approach blurs the distinction in terms of contractual liability of a medical organisation and tort liability in the form of compensation for moral harm. Contractual liability arises irrespective of fault (paragraph 3 of Article 401 of the Civil Code of the Russian Federation); compensation for moral harm is allowed, as a general rule, only in the presence of the fault of the person who caused the harm (paragraph 2 of Article 151 of the Civil Code of the Russian Federation). The terms of liability in such cases must be determined with due regard to the above rules.
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Teremetskyi, Vladyslav, and Yaroslav Zhuravel. "Concept of tortious legal relations and their main features." Vìsnik Marìupolʹsʹkogo deržavnogo unìversitetu. Serìâ: Pravo 10, no. 19 (2020): 80–89. http://dx.doi.org/10.34079/2226-3047-2020-10-19-80-89.
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The article is focused on studying the concept, content and essence of the definition of “tortuous legal relations”. The scientific works in the researched sphere have been analyzed. The author has indicated that there are gaps in the interpretation of the term of “tortuous legal relations” in its classical meaning and the place of this type of public relations in the legal system of Ukraine. It has been proved that most of scientific works do not reveal the meaning of this term, but its certain features were only indirectly analyzed in one way or another. The relevance and necessity of formulating the author’s definition of the term of “tortious legal relations” have been substantiated. The author has offered to understand this definition as relations regulated by legal norms arising in connection with the commission of an offense (tort), establishment of the tort’s fact, the use of state coercion during the process of bringing the subject of the committed illegal act to one of the types of legal liability, restoration of violated rights and freedoms and compensation for damage. Considerable attention has been paid to the novelties of national legislation on amendments to some codified acts of substantive and procedural law; the author has provided comments on the suggested amendments. It has been noted that the legislative enshrinement of the term of “criminal offense”, as well as the division of criminal offenses into crimes and misdemeanors and the selected criteria for such division is the most controversial. The components of the term of “tortious legal relations”, namely: the terms “tort” and “legal relations” have been revealed. It has been stated that tortious legal relations arise at the time of tort’s commission and are part of the legal relations. The issue of classification of legal relations and their features has been studied. Characteristic features of tortious legal relations have been revealed. It has been concluded that tortious legal relations, which are the component of legal relations and have all their features arise during the commission of a tort by a subject of legal liability.
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Mihai, Gabriel. "Considerations regarding legal liability in the matter of insolvency." Ars Aequi 12 (April 13, 2023): 20–28. http://dx.doi.org/10.47577/10.1234/arsaequi.12.1.201.
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The insolvency procedure involves a special legal liability characterized by a combination of the general conditions of tortious civil liability and the special conditions provided by the Insolvency Law. Attracting legal liability is the expression of the principle of liability for the debts of the legal entity debtor, to which the members of the management, administration and supervision bodies of the legal entity are responsible, as well as any other persons who caused the insolvency of the debtor with regard to the facts expressly provided for and limited by law The exact determination of the liability and implicitly, the extent of the liability of the persons who caused the state of insolvency is carried out by the syndic judge on the basis of the administered evidence.
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Fedtke, Jörg. "The Reform of German Tort Law." European Review of Private Law 11, Issue 4 (August 1, 2003): 485–508. http://dx.doi.org/10.54648/erpl2003031.
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Abstract: After a few futile attempts at reforming German law relating to compensation for tortious acts and breach of contract, a bill enacted on April 18, 2000 brought about some major changes. Amongst the key areas of reform are: the introduction of a general claim for non-pecuniary loss in cases of personal injury; the partial exclusion of value-added tax (VAT) in the calculation of material damages; an improvement of the position of children participating in public traffic; a “levelling” of the defences available to train operators as well as keepers of motorised vehicles under strict liability statutes; new rules relating to liabilty for pharmaceutical products; the raise of existing compensation caps (Haftungshöchstgrenzen) in the field of strict liability; and the introduction of liability of court-appointed experts who submit erroneous reports. Not only has the German legislator, by implementing this reform in August 2002, stayed abreast of changes in case law relating to compensation for tortious acts and breach of contract, but it has also fallen into line with general developments of the law in Europe, such as the improved protection of small children and the establishment of an express claim for non-pecuniary loss. However, the legal basis for a general right of personality has remained unchanged; in this context, a proposal by the Bundesrat to include such a right expressis verbis in the new § 847 BGB has not been adopted. The same holds true for the possibility of the principal to escape liability for his assistants, which is even more important against the background of other European jurisdictions. To lawyers with a common law background, who are accustomed to the gradual development of their case law, this history of German tort law offers an interesting perspective: it demonstrates the frictions involved in the interplay between legislative “maintainance” of an entire Code on the one hand, and development of the law by Courts on the other.
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Holyoak, Jon. "Raising the standard of care." Legal Studies 10, no. 2 (July 1990): 201–11. http://dx.doi.org/10.1111/j.1748-121x.1990.tb00600.x.
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Mounting concern over the burgeoning growth and impact of the tort of negligence has, as is well known, led to a backlash in recent years. The higher courts have re-imposed more restrictive approaches to the question of the duty of care, culminating in the assertion that ‘close and direct proximity’ is the pre–condition for the imposition of a duty of care, by the Privy Council in Yuen Kun Yeu v A–G .f Hong Kong. However, this attention, focussed on what are generally cases peripheral to the mainstream of tortious liability, has diverted many commentators away from the issue of breach of duty, which lies at the heart of the great preponderance of tortious litigation
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Butler, Alan. "Products Liability and the Internet of (Insecure) Things: Should Manufacturers Be Liable for Damage Caused by Hacked Devices?" University of Michigan Journal of Law Reform, no. 50.4 (2017): 913. http://dx.doi.org/10.36646/mjlr.50.4.products.
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While the application of products liability to insecure software is a frequently-discussed concept in academic literature, many commentators have been skeptical of the viability of such claims for several reasons. First, the economic loss doctrine bars recovery for productivity loss, business disruption, and other common damages caused by software defects. Second, the application of design defects principles to software is difficult given the complexity of the devices and recent tort reform trends that have limited liability. Third, the intervening cause of damage from insecure software is typically a criminal or tortious act by a third party, so principles of causation might limit liability for manufacturers.
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Lahe, Janno, and Leonid Tolstov. "Limitation of Personal Tort Liability of a Member of the Management Board of a Company - Perspective of Estonia." European Business Law Review 24, Issue 2 (April 1, 2013): 243–59. http://dx.doi.org/10.54648/eulr2013012.
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According to the organic theory acts done by a member of the management board of a company are regarded as acts done by the company itself and usually the corporate veil protects the board members from the claims of third persons. As exception there is still possible a direct tortious liability of a board member to others, as it will be analysed in the article below. Authors are searching in the current work for a reasonable limit of the tort liability of a board member, from the Estonian perspective. The main bases of the tort liability, analysed in the article, are violation of a protective provision, intentional behaviour contrary to good morals and providing incorrect information.
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Słup, Paweł. "Czy „Król może czynić źle”? Odpowiedzialność cywilna za wykonywanie władzy publicznej w prawie angielskim." Studia Iuridica 76 (January 17, 2019): 341–62. http://dx.doi.org/10.5604/01.3001.0012.8637.
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The principle of state liability has been widely recognised in 20th century and codified in certain jurisdictions. English law, however, has been traditionally reluctant to recognise the liability of Crown distinct from the of its servants. According to the long-standing principle of rule of law, servants of the Crown should be liable for torts committed in their official capacity just as individuals. The principle has been allegedly designed to protect the individuals from arbitrary decisions of public authorities, which fall in their actions under jurisdiction of common courts. It was not until the advance of Crown Proceedings Act 1974 when the Crown took material liability for torts committed by its servants. The nature of tortious liability of the public bodies, however, remained peculiar. The aim of this article is to indicate that the underlying concept of individual liability of servants, once designed to protect the individuals, now restricts the scope of civil liability of public bodies in English law.
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Cornford, Tom. "THE PUBLIC LAW DIMENSION OF PUBLIC AUTHORITY LIABILITY." Denning Law Journal 25, no. 1 (October 11, 2013): 129–58. http://dx.doi.org/10.5750/dlj.v25i1.623.
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In this paper I endorse the basic assumption that informed the Law Commission’s consultation paper on Administrative Redress of 2008, namely that the problem of administrative liability in English law can only be understood by examining both its tortious and its public law dimensions and that a satisfactory solution would involve a form of liability that straddled the public/private divide. In support of this view, I advance a rationale for a form of liability that involves reparation for harms resulting from acts unlawful as a matter of public law and argue that the form of liability that the rationale supports would inevitably impinge upon the territory currently occupied by the law of tort. I then proceed to criticise the views of scholars who have recently argued that a satisfactory law of public authority liability can be arrived at by the use of the concepts of orthodox tort law alone.
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Purwadi, Ari. "Tinjauan tentang Tanggung Gugat EX Pasal 1365 BW bagi Pencemar Lingkungan." Jurnal Hukum & Pembangunan 21, no. 2 (April 24, 1991): 121. http://dx.doi.org/10.21143/jhp.vol21.no2.336.
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Dengan lahimya Undang-undangNomor. 4 Tabun 1982 tentang Ketentuanpokok pengelolaan Lingkungan hidupmerupakan tonggak pembangunan hukumdalam lingkungan nasional yangberorientasi pada lingkungan. Bagipencemar lingkungan yang melakukanperbuatan melanggar bukum menurutUULH menggunakan prinsip membayarganti kerugian, terkena pasal 1365 KOHPerdaflo yang mengandung konseptanggung gugat yang dipertajam. Selainitu pula UULH menganut Asas strictliability dan tortious liability,,, dimanakesemua aturan tersebut merupakandasar bagi pembuktian para pencemarlingkungan untuk dikenakan sanksi.Demikian diungkap penulis dalam tulisanini.
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Liivak, Taivo, and Janno Lahe. "Strict Liability for Damage Caused by Self-Driving Vehicles: The Estonian Perspective." Baltic Journal of Law & Politics 12, no. 2 (December 1, 2019): 1–18. http://dx.doi.org/10.2478/bjlp-2019-0009.
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Abstract In the case of damage caused by a conventionally driven vehicle, it is usually possible in EU Member States to subject the possessor/controller of the vehicle to heightened tortious no-fault liability, i.e. strict liability. The development and possible introduction of self-driving vehicles pose a challenge also for tort law, because it is unlikely that self-driving vehicles will not cause any damage to third parties. With the application of strict liability in mind, this article attempts to identify possible differences between damage caused by a conventional vehicle as opposed to that caused by a self-driving vehicle. In light of this developing technology the key legislative question to be answered is whether the introduction of self-driving vehicles calls for, among other things, the revision of strict liability rules. Answers to these questions are sought mainly based on Estonian tort law.
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zhu yan. "Legal Duties and Tortious Liability of Third-Party E-Commerce Platforms." HUFS Law Review 41, no. 4 (November 2017): 181–201. http://dx.doi.org/10.17257/hufslr.2017.41.4.181.
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Arora, Anu. "Contractual and tortious liability in EFT transactions in the United Kingdom." Information & Communications Technology Law 1, no. 3 (January 1992): 291–309. http://dx.doi.org/10.1080/13600834.1992.9965659.
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Hemraj, Mohammed B. "The emergence of solicitors’ tortious liability and the award of damages." Journal of Financial Crime 10, no. 4 (October 2003): 316–30. http://dx.doi.org/10.1108/13590790310808862.
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Peyer, Sebastian, and Rob Heywood. "Walking on thin ice: the perception of tortious liability rules and the effect on altruistic behaviour." Legal Studies 39, no. 2 (April 23, 2019): 266–83. http://dx.doi.org/10.1017/lst.2018.39.
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AbstractLaypeople are often deterred from undertaking altruistic acts, assuming that they face a risk of negligence liability should they injure others while helping. We argue that the laypeople's interpretation of the law does not correspond with the courts’ interpretation of negligence liability. Reviewing the case law, we demonstrate that the courts treat such cases with leniency in the spirit of the Compensation Act 2006, s 1 and the Social Action, Responsibility and Heroism Act (SARAH) 2015, s 2. Thus, the negligence liability rules do not offer a sufficient explanation for the widely-held opinion that acts of altruism may give rise to liability. We hypothesise that the public's perception of legal rules is determined by a number of well-known biases and is not founded in the law itself. In the light of those biases, we contend that the function of the Compensation Act 2006, s 1 and SARAH 2015 does not lie in the substance but in their value as potential signals to reassure laypeople.
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Marson, James. "Collective Redress: Broadening EU Enforcement through State Liability?" European Business Law Review 27, Issue 3 (June 1, 2016): 325–51. http://dx.doi.org/10.54648/eulr2016015.
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This article advances an argument that private enforcement of European Union (EU) rights has largely been stunted due to a series of blocking tactics by Member States, enabled through a form of tacitic subservience of the Court of Justice of the European Union. Currently, State Liability is neither an effective system of redress under tortious liability, nor a genuine enforcement mechanism in domestic law. By enabling collective redress in State Liability, we present an argument, missing explicitly in current literature, that both as a viable remedy through the (UK’s modified) tort of breach of statutory duty, and through granting effective redress through action by the EU Commission, State Liability will become the mechanism for corrective justice the Court of Justice envisaged in 1991. In 2011, the EU Commission issued a nonbinding Recommendation establishing collective redress for breach of competition law. Could this be seen as positive positioning by the EU to seize the initiative for greater access to individuals of justice and justiciable solutions?
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Graziano, Thomas Kadner. "THE LAW APPLICABLE TO PRODUCT LIABILITY: THE PRESENT STATE OF THE LAW IN EUROPE AND CURRENT PROPOSALS FOR REFORM." International and Comparative Law Quarterly 54, no. 2 (April 2005): 475–88. http://dx.doi.org/10.1093/iclq/lei008.
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The choice of law-rules for contractual obligations is harmonized in the European Union and the system established by the Rome I-Convention has proved its merits.1 The choice of law rules for tortious or delictual liability, on the contrary, is still largely left to the national legislators and courts2 and they differ very much from one country to the other. Two Hague Conventions cover particular issues.3 Neither of them is in force in the UK.
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Nikas, Luke, and Paul Maslo. "A Complete View of the Cathedral: Claims of Tortious Interference and the Specific Performance Remedy in Mergers and Acquisitions Litigation." Michigan Business & Entrepreneurial Law Review, no. 3.1 (2013): 1. http://dx.doi.org/10.36639/mbelr.3.1.complete.
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A bank promises to lend several billion dollars to fund a buyer’s purchase of a target company. The buyer enters into a merger agreement with the target. Thereafter, the economy plummets, and the bank decides that breaching its contract with the buyer will cost less than performing. The buyer seeks specific performance. The target also sues the bank, alleging tortious interference with the merger agreement. Billions of dollars are on the line. This is the reality lived by many investment banks that committed to fund leveraged buyouts during the recent economic downturn. Most of these matters were resolved in private settlements to avoid the possibility of crippling tort liability and publicly airing the messy details of the targets’ poor financial circumstances. The judicial decisions that do exist reveal a myopic view of the relationship between the buyer’s specific performance claim against the bank, on the one hand, and the target’s tort claim against the bank, on the other. By treating these claims as substantively distinct, courts threaten to impose an inefficient liability rule for the bank’s allegedly tortious conduct (including the possibility of punitive damages) and an equally inefficient property rule for the bank’s alleged breach of contract (specific performance). Courts must take a singular view of the combined costs and efficiencies created by the buyer’s and target’s individual claims to properly determine the appropriate remedy for the bank’s conduct.
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CHEN, Bing, and Shan LIU. "Directors' Tortious Liability: A Study of Case in Hong Kong and England." Greener Journal of Business and Management Studies 1, no. 1 (September 20, 2011): 009–20. http://dx.doi.org/10.15580/gjbms.2011.1.jmbs-11010.
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Wright, Glen. "Risky Business: Enterprise Liability, Corporate Groups and Torts." Journal of European Tort Law 8, no. 1 (May 1, 2017): 54–77. http://dx.doi.org/10.1515/jetl-2017-0003.
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AbstractCorporate personality and limited liability have been the foundations of corporate law for most of its modern history. While these concepts greatly contributed to the early development of corporations, their application in the modern era is outmoded. Nowhere is this clearer than in ‘risky business’ scenarios, where a subsidiary is constituted for the purpose of shielding the corporate group as a whole from tortious liability arising from risky or dangerous activities. Tort victims generally must rely on ineffective and inconsistent common law and tort law doctrines in order to seek redress for torts committed against them, and a number of high profile cases have highlighted the flaws in such approaches. Many corporate law and tort scholars have commented on these flaws and a literature has developed proposing rational alternatives. This paper presents the case for adopting ‘enterprise liability’ in risky business situations, that is, treating the companies within a corporate group as one unified enterprise for the purposes of compensating tort victims.
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Murphy, John. "Expectation Losses, Negligent Omissions and the Tortious Duty of Care." Cambridge Law Journal 55, no. 1 (March 1996): 43–55. http://dx.doi.org/10.1017/s0008197300097725.
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In English law, the recovery of pure economic loss falls mainly within the province of the law of contract. Only in very limited circumstances does the law of tort provide for the recovery of such losses. As Cardozo C.J. explained in Ultramares Corporation v. Touched, tort is concerned not to permit “liability in an indeterminate amount, for an indeterminate time to an indeterminate class”. Notwithstanding this reticence, their Lordships' speeches, though not the final decision, in the seminal case of Hedley Byrne & Co. Ltd. v. Heller and Partners Ltd. provided a notable inroad into the rigidity of this stance. Since Hedley Byrne, the question has become, instead, how far, not if, pure economic loss is and should be recoverable in the law of negligence.
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Gilead, Israel. "Issues in the Law of Torts." Israel Law Review 24, no. 3-4 (1990): 651–56. http://dx.doi.org/10.1017/s002122370001013x.
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In a recent article, Prof. Izhak Englard reviewed the salient developments in tort law over the last decade. These developments are:(a) Deciding the question of the internal structure of the Civil Wrongs Ordinance as regards the relationship between the general and the specific torts.(b) Extension of tortious liability for negligence, and the crystallization of the conceptual framework of that tort.(c) Expanding the scope of the tort of breach of a statutory duty by allowing the unimpeded inclusion of statutory duties within the scope of the Civil Wrongs Ordinance.(d) Removal of the umbrella erected by the case law in order to shield the State and its agencies from liability for negligence and the breach of a statutory duty, and the equation of the position of the State to that of other tortfeasors.
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Alessi, Dario. "Enforcing Arbitrators Obligations: Rethinking International Commercial Arbitrators Liability." Journal of International Arbitration 31, Issue 6 (December 1, 2014): 735–84. http://dx.doi.org/10.54648/joia2014035.
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Liability of arbitrators touches the heart of the concept of arbitration as it affects the legal relationship between the arbitrators and the parties and concerns some essential issues on the nature of the arbitrator's mandate. This article intends to propose an alternative conceptual approach to the immunity-based theories, endorsing the suggestion that the arbitrator shall be liable as any normal intellectual service provider for breach of her obligations. Regarding the regime of liability, a systematization is proposed whereby strict liability, fault-based liability and tortious liability cohabitate. This relationship is argued being contractual. The existence of an objective contractual exchange underlies contractual liability for breach. As a consequence, the thesis proposed in this article is that the arbitrator shall be liable for breaches of the obligations contractually incurred. These contractual obligations can be divided into two main clusters, namely, the obligation to decide the dispute submitted and the obligation to provide a fair and equal adjudication. Thus, a dual regime of contractual liability for arbitrators is proposed. A separate set of obligations is represented by the pre-contractual duties of disclosure, which are tort-based. The plain existence of a contractual relationship between the arbitrator and the parties automatically sets aside all those theories claiming that because of the status or for some policy argument, the arbitrator must be immune from liability. As a consequence, any immunity or qualified immunity-based theory is rebutted in favor of a full liability-based conceptual scheme.
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Loser, Peter. "Financial Crisis – The Liability of Banking Institutions." Journal of European Tort Law 4, no. 2 (August 2013): 128–62. http://dx.doi.org/10.1515/jetl-2013-0012.
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AbstractThis article outlines what roles the banks have played in the subprime crisis and whether liability for damages sustained may be incurred. Apart from the conventional responsibility of banks towards their clients within the framework of wealth management or advisory services, the particular issue of possible liability for the creation and placement of investment products on the market is explored. Many questions which remain unanswered or are barely discussed are raised in the article. Independently of prospectus liability arising under specific legislative provision, is there a general tortious responsibility for providing incorrect information in connection with the issuing of securities? Is strict liability for the creation of dangerous products a realistic alternative – or supplement – to liability based on fault? Can individuals or institutions who were only indirectly involved as secondary victims claim compensation? In addition to the grounds of liability, other delicate legal questions are addressed, particularly relating to causation. For instance, it may not be clear whether an error in information or rather general market euphoria was the decisive factor in the investment decision. If, moreover, one wanted to extend liability to a large number of persons involved, the causal contributions of the individual banks may barely be determinable and could well be minimal. This leads to the question of whether procedural law is capable of dealing with such cases of loss.
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Monaco, Paola. "Liability for negligently issued anti-mafia certificates." Journal of Financial Crime 25, no. 1 (January 2, 2018): 210–17. http://dx.doi.org/10.1108/jfc-10-2016-0066.
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Purpose This paper aims to analyse the different forms of liability that might apply under Italian private law to anti-mafia advisors who negligently perform their duties, with particular regards to auditors concerning the drafting of mandatory anti-mafia certificates as bidding documents for public procurement contracts. Design/methodology/approach The analysis is based on the comparative law methodology of dissociation of “legal formants”, that is, on the study of separate contributions by each element of the legal system – from black-letter provisions to judicial dicta, from scholars’ arguments to administrative practices – to the making of legal rules in a given setting. Findings Neither case law nor academic writing is abundant on this topic. Yet, it can be fairly assumed that an advisor who negligently drafts anti-mafia certificates might incur both contractual and tortious liability. Originality/value The paper investigates an area, which has so far been largely unexplored, and, thus, contributes to paving the way for a better understanding of the legal framework applicable to the cases under examination.
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Dyson, Matthew. "THE TIMING OF TORTIOUS AND CRIMINAL ACTIONS FOR THE SAME WRONG." Cambridge Law Journal 71, no. 1 (March 2012): 86–117. http://dx.doi.org/10.1017/s0008197312000219.
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AbstractThis paper traces a key example of the overlap between tort and crime and explains the impact of how disjointed English legal thinking has been. For about 400 years English civil courts have accepted some form of pre-eminence of the criminal law where civil and serious criminal liability co-exist. This has often been described as the rule that “a trespass merges in a felony” though a more neutral term would be a “timing rule”. The development of the timing rules casts light on how English legal reasoning has approached the relationship between the victim and the state, the procedural context of substantive rules and the impact rules in one area of law can have elsewhere.
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Martens, Claus-Peter. "Environmental Liability of Parent Companies and Subsidiaries under German Law." European Energy and Environmental Law Review 12, Issue 5 (May 1, 2003): 135–47. http://dx.doi.org/10.54648/eelr2003022.
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Summary: The bases of liability under German environmental law are as complex as are the addressees of liability. The responsibilities do not exclude each other but rather often apply parallel to each other. Under German civil law, the main emphasis is on the liability of the enterprise. Parallel to that, company bodies and executive employees may be held liable. Employees are liable for tortious acts committed wilfully or by gross negligence; however, they are solely liable for compensation claims vis-à-vis the enterprise but not vis-à-vis third parties. In the internal relationship between parent company and subsidiary, the parent company is always liable if the acts of the subsidiary which led to a realisation of the elements of liability were committed by order of the parent company or if another type of influence of the parent company on the acts of the subsidiary can be established. In contrast to that, liability under German criminal law, as a rule, applies as to the individual employees of the enterprise. With respect to the avoidance of liability, only a combination of various measures, such as prohibitions and the development of more self-responsibility and self-control of the enterprises, will lead to the greatest success. In particular the principles of the eco-audit should be applied in each enterprise even without an official participation in the eco-audit system.
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Henrik Edlund, Hans. "Culpa in Contrahendo: Tortious Liability, Breach of Contract or an Autonomous Legal Instrument?" European Business Law Review 30, Issue 5 (October 1, 2019): 815–22. http://dx.doi.org/10.54648/eulr2019033.
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The legal character of contract negotiations is much debated and different answers are given to the question whether disloyal behaviour committed during unsuccessful contract negotiations can be met by contractual or tort law remedies or, as a third possibility, some unique sanctions developed for this certain semi-contractual situation only. In this article, it is argued that an agreement to negotiate a contract is a contract in itself, although a very non-binding one – a pre-contract. Subsequently, breach of the parties´ duties relating to the pre-contract might be sanctioned by using contractual remedies. Most of the usual remedies, however, are not relevant, except for damages. These may be measured according to the principles on expectation interest, but in this specific situation the outcome will be almost identical with damages that are calculated according to the reliance interest. It is of course not possible to claim damages related to the contract that could have been the result if the contract negotiations had been successful.
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Dudaš, Atila. "Concurrent claims in contract and tort in Serbian law: With reference to the new Hungarian Civil Code from 2013 and the Project of the Reform of the French Civil Code regarding liability for damage from 2017." Zbornik radova Pravnog fakulteta, Novi Sad 56, no. 3 (2022): 795–817. http://dx.doi.org/10.5937/zrpfns56-41142.
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In the Serbian literature the issue of the overlap between contractual and liability in tort has been thoroughly discussed. The majority of references state that the differences between the two regimes of liability outweigh their common features, thus separate sets of rules should exist governing each. There are authors who claim that differences are not of such significance so as make the integral concept of liability for damage senseless, hence they support the idea of regulating both regimes of liability by a single set of rules. The effective Obligations Act of 1978 is in line with the majority opinion, since it envisages different sets of rules for each regime of liability. Taking into account the existing duality of the rules in the Act, which significantly differ on major points, the key issue is the overlap of contractual and tortious liability, namely rules of which system of liability should apply if the injured party may base their claim on both (so-called concurrency of claims). Lacking an explicit rule in the Obligations Act, the majority asserts that the regime more favorable to the injured party should apply, which corresponds to the German solution. The inspiration for this paper is found in the new Hungarian Civil Code from 2013 which, in contrast to its predecessor, the 1959 Civil Code, and the Serbian Obligations Act, contains an explicit rule on the concurrency of claims in contract and tort. It prescribes a mandatory application of the rules of contractual liability even when the inflicted damage supports the application of the rules of the liability in tort. Such an approach is in line with the French non-cumul doctrine. The aim of this paper is, on the one hand, to initiate a discussion whether it would be reasonable to have a statutory rule in the Serbian law regulating explicitly the issue of concurrency of claims in contract and tort. On the other hand, the paper highlights the reasons that led the legislator in Hungary to prohibit the concurrency of claims. The solution of the new Turkish Code of Obligations from 2011 is mentioned in the paper, as well, which also contains an explicit rule on this subject matter. However, it took a diametrically opposite standpoint as the Hungarian Civil Code: it explicitly enables competing claims not only in contract and tort, but according to any set of rules granting redress to the injured party. Finally, the paper gives a review of the Project of the Reform of the French Code Civil concerning the rules of the liability for damage from 2017. The Project envisaged a rule that would codify the traditional standpoint of the case law and doctrine on the exclusion of the concurrence of claims and mandates the application of the rules on contractual liability. The Project specifies, however, some major exceptions, when regardless of the existence of a contract between the parties, the rules of tortious liability apply. For the time being, however, it seems that a genuine will of the legislature is lacking to embody the Project in the amendments of the Code civil.
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Kucharski, Bartosz. "Civil Law Consequences of the Non-Adjustment of an Insurance Product by the Distributor to the Demands and Needs of a Customer." Prawo Asekuracyjne 3, no. 100 (September 15, 2019): 18–35. http://dx.doi.org/10.5604/01.3001.0013.5730.
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According to the author, only in certain situations may the non-adjustment of insurance products to the demands and needs of the customer lead to the invalidity of insurance contract terms, or be remedied by the interpretation thereof in favour of the customer. Thus, the basic legal remedy which can be used by the customer in such case is to claim damages from the distributor. As a rule, distributors assume contractual liability based on the presumption of fault: in the case of brokers arising from brokerage contract, and in case of other distributors from obligations specified in the provisions of the Insurance Distribution Act. Insurers bear tortious non-fault liability for the activities of their dependent agents. Basically, clients may claim full damages according to the so called “difference theory”. In many cases however the damages will be restricted to the value of the overpaid insurance premium.
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Raffer, Kunibert. "Risks of Lending and Liability of Lenders." Ethics & International Affairs 21, no. 1 (March 2007): 85–106. http://dx.doi.org/10.1111/j.1747-7093.2007.00062.x.
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Risk and liability change the initially stipulated terms of contracts, overruling their otherwise binding nature. Risk encourages careful assessment of debtors' abilities to service debts. Errors and negligence in assessment, and even external shocks, make creditors suffer losses. Disregarding one's duty of care or professional standards, or engaging in tortious or illegal behavior makes actors liable to compensate for any resulting damage—a necessary systemic element of the framework markets need to function well. Neither mechanism was allowed to work properly in sovereign lending.This essay analyzes why risk and liability are necessary mechanisms of well-functioning markets, and discusses how risk can be handled. In the United States, inappropriate regulatory norms hindered providing against risk in the case of sovereign debt. The absence of liability—a market imperfection—has produced debts no decent legal system would recognize as legitimate domestic debt, thus aggravating the sovereign debt problem, and giving rise to concepts such as criminal, odious, and illegal debts. Discriminating sovereign debtors and disobeying the rule of law caused market distortions, resulting in not only grave damages to debtors, but also losses to creditors that the mechanisms risk and liability would have avoided. Finally, I briefly present proposals to repair these shortcomings in order to avoid the disasters of the past.
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吳淑莉, 吳淑莉, and 董啟忠 Shu-Li Wu. "汽車交通事故駕駛人之侵權責任──自動駕駛系統之挑戰." 財產法暨經濟法 70, no. 70 (December 2022): 87–114. http://dx.doi.org/10.53106/181646412022120070003.
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Bokwa, Krzysztof, and Iwo Jarosz. "The standards of tortious liability in the West Galician Code and its influence on ABGB in light of modern Polish tort law." Studenckie Prace Prawnicze, Administratywistyczne i Ekonomiczne 34 (February 22, 2021): 171–83. http://dx.doi.org/10.19195/1733-5779.34.12.
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The aim of the article is to describe the general outline of the provisions of the West Galician Code of 1797 regarding standards of tortious liability. To this end, the genesis of this codification and its significance for the development of law in Central Europe is shown. Chosen provi-sions of Chapter XIII of Part Three of the Code are then discussed and compared, especially those incorporating specific or original regulations, taking into account the relevant provisions in ABGB and the Polish Civil Code. The utilization of comparative, legal-historical and dogmatic methods shall enable showing the evolution and timelessness of certain contract law problems over the last two centuries.
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Tanjevic, Natasa. "Society as a crime victim of legal entities." Temida 14, no. 2 (2011): 61–76. http://dx.doi.org/10.2298/tem1102061t.
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Tortious acts of legal entities have unforeseen harmful consequences in all areas. In the greedy desire to gain profit, certain legal entities do not have any regard for the most important resources of individuals and society. Damage resulting from the commission of criminal acts is very high for the whole society, especially when it comes to crimes against the environment. In order to prevent and combat corporate crime in criminal law, an increasingly wider acceptance of criminal liability of legal entities was adopted. This paper discusses the basic characteristics of corporate crime, as well as the reasons for the introduction of the criminal responsibility of legal entities. In this regard, we analyzed the law provisions regarding the liability of legal entities for criminal offenses, and concluded that despite the criminal-political need to react with more serious sanctions to the offenses of legal entities, there are certain obstacles and problems that stand in the way of introducing this responsibility.
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Alpa, Guido. "General Remarks on Civil Liability in the European Context." European Business Law Review 30, Issue 1 (February 1, 2019): 101–16. http://dx.doi.org/10.54648/eulr2019004.
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When contemplating the evolution of the civil liability system in the European context, we should consider at least three different perspectives: (i) the establishment and application of rules governing civil liability laid down directly by the Treaty on the Functioning the European Union (TFEU ) for harm caused by its institutions or by its agents in the exercise of their functions (Art. 340); (ii) the establishment and application of rules regarding Member States’ liability for infringement of EU rules, in accordance with the general rules of the Treaty (Art. 4) and the principles developed by the Court of Justice; (iii) the establishment and application of rules deriving from European sources that define special type of torts. The rules may be provided either by regulations or directives. However, rules, in these cases, are not always “complete”: in other words, neither the EU rules nor the principles developed by the Court of Justice always identify all the necessary components of the tortious act, namely the criterion of imputation (wilfulness, fault, risk), the interest harmed, the link of causation between the act and the harmful effect, the injury.