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1
Rogerson, Pippa. « ECONOMIC TORTS IN THE CONFLICT OF LAWS ». Cambridge Law Journal 76, no 2 (juillet 2017) : 240–43. http://dx.doi.org/10.1017/s0008197317000496.
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IN AMT Futures Ltd. v Marzillier [2017] UKSC 13; [2017] 2 W.L.R. 853, the Supreme Court had to decide where a “harmful event” occurred in order to determine whether the English court had jurisdiction over the defendant, Marzillier, a German lawyer. AMT brought an action in England against Marzillier for inducing breaches of contracts made between AMT and their European clients. Although the client contracts contained an exclusive jurisdiction clause in favour of the English courts, Marzillier had encouraged the clients to bring actions against AMT in Germany. The claims were made under German law of delict alleging that AMT were accessory to the bad investment advice given by the clients’ brokers. The brokers were insolvent. The German claims were brought directly against AMT and AMT settled. It had lost on the jurisdiction question in Germany because the exclusive jurisdiction clause did not bind the clients. They were consumers. Additionally, the actions were in tort and therefore did not fall within the scope of the clause. AMT brought this action in England after paying over £2m in settlement and costs in Germany. AMT argued that Marzillier had deprived AMT of the benefit of the contractual exclusive jurisdiction agreement by inducing the clients to sue in Germany. Marzillier, a defendant domiciled in Germany, could only be sued in England if the harmful event occurred here. Lord Hodge J.S.C., giving a beautifully clear judgment, held that the case could not be heard in England. England was not the place where the harm occurred, despite payment out of an account in England and the alleged breach of the exclusive English jurisdiction agreement. He held that Germany was the place where the harm occurred under what is now Article 7(2) (ex Article 5(3)) of the Brussels I Regulation Recast (Regulation EC No 1215/2012).
2
Semmelmayer, Philipp. « Climate Change and the German Law of Torts ». German Law Journal 22, no 8 (décembre 2021) : 1569–82. http://dx.doi.org/10.1017/glj.2021.76.
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AbstractEven throughout a global pandemic, climate change continues to be a fiercely discussed topic—both politically and legally—the world over. Particularly in light of the many Covid-19 related financial aid programs (including transnational ones) and the associated economic stabilization and reconstruction plans, a sustainable climate policy and legal order should be expected to play a role for an economy that has fallen into a slump. Nevertheless, a lively discussion on how best to achieve climate protection continues to take place in already established systems such as the private law system. Here, as far as climate change is concerned, tort law appears to be the focus of these discussions. The extent to which tort law and the issue of climate change can be brought together is also increasingly being discussed in Germany. This article attempts to shed light on the questions of how tort law could contribute to the mitigation of climate change and how climate change could fit into the law of torts of the German civil law legal system.
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Chilson, Gregory. « Parental Corporate Liability as Tort in the United Kingdom Part I : How the Past Informs the Challenge of Contemporary Regulation ». Business Law Review 43, Issue 6 (1 octobre 2022) : 226–36. http://dx.doi.org/10.54648/bula2022036.
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Recent case law in the UK courts has established the possibility for the parent companies of multinational corporations (MNCs) to hold liability in tort negligence for harms caused by their foreign-based subsidiaries. The UK’s approach – a general duty of care for cross-border torts – is noteworthy in that it has developed organically through the common law despite conflicting with established principles of company law. By comparison, European neighbours such as France, Switzerland and Germany have developed statutory regulatory regimes which utilize due diligence obligations that appear more reflective of recent international accountability standards, such as the UN Guiding Principles for Business and Human Rights (UNGPs) of the late John Ruggie. This work serves as an in-depth investigation for scholars of tort law, company law, private international law and human rights, who are interested in understanding this rapidly developing area of practice from an English perspective. This work is offered in two parts. This first part contextualizes the current law within contemporary academic discourse and offers a historically informed explanation for the conceptual underpinnings of the unique approach currently taken within English jurisprudence and their coherence with the broader principles of domestic UK company law. The second part offers an analysis of UK law as it stands including the caselaw that builds the corpus of parent company liability in England and Wales. It analyses how effective the current liabilities identified by the Courts are in securing fair remedy for corporate misfeasance. It identifies and categorizes its key features and contrasts them with comparative elements of statutory due diligence approaches adopted by France and Germany or pursued as in the case of Switzerland. It will finally consider whether they offer any concepts worthy of consideration for the regulation of parent company liabilities in future. Parent Company, Corporate Groups, English Company Law, Human Rights Due Diligence, UNGPs, Okpabi, Vedanta, Mass Torts, Supply Chain Liability, Limited Liability
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Walton, Clarence C. « Punitive Damages : New Twists in Torts ». Business Ethics Quarterly 1, no 3 (juillet 1991) : 269–91. http://dx.doi.org/10.2307/3857614.
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While jurisprudence in the United States has been cast in the general mode of the English common law, modifications over time have produced enough significant variations that American law has a distinctive quality. To illustrate: The exclusionary rule in criminal cases prohibiting the use of evidence (even from reliable witnesses) acquired through illegal search, is not followed in Britain—or, for that matter, in Canada, Germany, and Israel. The punitive-damage concept (PD) in tort law is also a jurisprudential novelty. Punitive damages are imposed in addition to compensatory awards given to tort victims to warn manufacturers and sellers to be careful in their safety and marketing practices. PDs are society's warning signals: Seller beware! Because they are one of society's ways to protect itself, PDs have recently been considered as fines which, to prevent excesses, should be under the rubric of the Eighth Amendment.This essay introduces new elements into the discussion on torts by hypothesizing (1) PDs are fines which belong to the public purse; (2) that expenditures from the public purse should be given to local organizations (like orphanages and inner-city hospitals) which provide vital services for those unable to pay; and (3) that the victim (or the victim's survivor) has a right to designate what local organizations should benefit from his or her punitive-damage awards.The hypotheses require reexamination of the concepts of citizenship, community, and work, respectively.Tort law is an integral part of the American law of injuries, a body of judicial doctrine and legislation and a set of legal arrangements that also include compensation systems and safety legislation. It would have been unthinkable as recently as twenty-five years ago that the tort system would become a source of bitter contention. Today, however, it generates sharp rhetoric and dramatic proposals for change to address its contested problems, as well as strong views in favor of continuing the system essentially intact so as not to disturb its contended benefits.
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Chilson, Gregory. « Part II : Parent Company Liability and the Idea of Statutory Due Diligence ». Business Law Review 44, Issue 1 (1 janvier 2023) : 13–32. http://dx.doi.org/10.54648/bula2023006.
Texte intégralRésumé :
Recent case law in the UK courts has established the possibility for the parent companies of multi-national corporations to hold liability in tort negligence for harms caused by their foreign based subsidiaries. The UK’s approach – a general duty of care for cross-border torts – is noteworthy in that it has developed organically through the common law. One possible tension this duty raises, may be with established principles of company law, affirmed at common law. By comparison, European neighbours such as France, Switzerland and Germany, have addressed the same issue of corporate accountability by developing statutory regulatory regimes which utilize due diligence obligations reflective of the recent trend toward international accountability standards, such as the UN Guiding Principles for Business and Human Rights (UNGPs) of the late John Ruggie. This work serves as an in-depth investigation for scholars of tort law, company law, private international law, and human rights, who are interested in understanding this rapidly developing area of practice from an English perspective. This work is offered in two parts. This second part offers an overview of UK statutory and case law as it may relate to parent company liability. A critical analysis of recent case law, seeks to understand the characteristics of parent company liability, as developed by the Courts in securing fair remedy for corporate misfeasance. With reference to comparative regimes observed in the aforementioned neighbouring European countries, this work further considers what limitations the current law has, and what benefits could be realized through the introduction of reporting requirements. Parent Company, Corporate Groups, English Company Law, Human Rights Due Diligence, UNGPs, Okpabi, Vedanta, Mass Torts, Supply Chain Liability, Limited Liability
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Downes, T. A. « Trawling for a remedy : state liability under Community law ». Legal Studies 17, no 2 (juillet 1997) : 286–304. http://dx.doi.org/10.1111/j.1748-121x.1997.tb00408.x.
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This paper explores the implications for English law of the decision of the European Court of Justice in joined cases C-46/93 Brasserie du Pêcheur v Germany and C-48/93 R v Secretary of State for Transport, ex p Factortame (No 4) and subsequent decisions developing the principles enunciated therein. More specifically, it examines how the English law of torts is to accommodate the European law obligation to compensate, in appropriate circumstances, individuals suffering a loss as a result of a breach by the state of Community law. In confronting this question English law is engaged in the unfamiliar exercise of attempting to match a remedy to an already recognised right: the history of the common law, and the law of torts in particular, is of defining rights in the light of the existing remedies under which they could be asserted.
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Hünert, Matthias. « Rechtliche Bewältigung der Haftung für Massenschäden im Deutschen Recht ». European Review of Private Law 7, Issue 4 (1 décembre 1999) : 459–80. http://dx.doi.org/10.54648/256438.
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The law on civil liability and civil procedure in force in Germany are in general designed to deal with the compensation of individual harm, and may not deal so adequately with mass torts. Because of this in many areas a corresponding reform of or addition to the legal rules is required. The law on civil liability is primarily called upon to provide the basis for an appropriate compensation for damage. A failure to satisfy this function should not therefore be accepted. Nor is this fundamental mission affected by the fact that the compensation for damage, which is determined by the rules of civil liability, in many areas intersects with systems for collective insurance and collecting measures for dealing with damage, such as for example liability, sickness and social insurance; for even in these cases as soon as one deals with the subrogated claim against the defendant, reference is made to the normal rules of civil liability, so that these must contain rules appropriate to mass torts.
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Mora, Paul David. « Jurisdictional Immunities of the State for Serious Violations of International Human Rights Law or the Law of Armed Conflict ». Canadian Yearbook of international Law/Annuaire canadien de droit international 50 (2013) : 243–87. http://dx.doi.org/10.1017/s0069005800010857.
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SummaryIn its recent decision in Jurisdictional Immunities of the State (Germany v Italy: Greece Intervening), the International Court of Justice (ICJ) held that Italy had failed to respect immunities enjoyed by Germany under international law when the Italian courts allowed civil actions to be brought against Germany for alleged violations of international human rights law (IHRL) and the law of armed conflict (LOAC) committed during the Second World War. This article evaluates the three arguments raised by Italy to justify its denial of immunity: first, that peremptory norms of international law prevail over international rules on jurisdictional immunities; second, that customary international law recognizes an exception to immunity for serious violations of IHRL or the LOAC; and third, that customary international law recognizes an exception to immunity for torts committed by foreign armed forces on the territory of the forum state in the course of an armed conflict. The author concludes that the ICJ was correct to find that none of these arguments deprived Germany of its right under international law to immunity from the civil jurisdiction of the Italian courts.
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Šrámek, Martin. « Brussels I : Recent Developments in the Interpretation of Special Jurisdiction Provisions for Internet Torts. » Masaryk University Journal of Law and Technology 9, no 1 (30 juin 2015) : 165–73. http://dx.doi.org/10.5817/mujlt2015-1-10.
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The paper deals with recent rulings of the European Court of Justice regarding the international jurisdiction of European courts in connection with infringements over the Internet. The aim of the paper is to illustrate a shift in the judicature of the Court and the need for a recast of the special jurisdiction provisions in the Brussels I Regulation.The main focal point is the ruling in the case C-170/12 Peter Pinckney v KDG Mediatech AG, which contains two surprising conclusions. Firstly, the intentions of the alleged infringer to target a certain jurisdiction are not to be taken into consideration. The decisive connecting factor is solely the fact that the harmful event may occur within the jurisdiction of the court. Secondly, the actions of anindependent third party can now establish the jurisdiction for a suit against the alleged infringer. This has been the subject of two other recent cases C-387/12 Hi Hotel HCF Sparl v Uwe Spoering and C-360/12 Coty Germany GmbH v First Note Perfumes NV. In both of these cases the sole actions of the alleged infringer would not suffice to establish the jurisdiction of the court in question. The paper tries to evaluate these rulings in light of procedural fairness and the traditional interpretation od special jurisdiction provisions.
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Hoffmann, Thomas, et Gunnar Prause. « On the Regulatory Framework for Last-Mile Delivery Robots ». Machines 6, no 3 (1 août 2018) : 33. http://dx.doi.org/10.3390/machines6030033.
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Autonomously driving delivery robots are developed all around the world, and the first prototypes are tested already in last-mile deliveries of packages. Estonia plays a leading role in this field with its, start-up Starship Technologies, which operates not only in Estonia but also in foreign countries like Germany, Great Britain, and the United States of America (USA), where it seems to provide a promising solution of the last-mile problem. But the more and more frequent appearance of delivery robots in public traffic reveals shortcomings in the regulatory framework of the usage of these autonomous vehicles—despite the maturity of the underlying technology. The related regulatory questions are reaching from data protection over liability for torts performance to such mundane fields as traffic law, which a logistic service provider has to take into account. This paper analyses and further develops the regulatory framework of autonomous delivery robots for packages by highlighting legal implications. Since delivery robots can be understood as cyber-physical systems in the context of Industry 4.0, the research contributes to the related regulatory framework of Industry 4.0 in international terms. Finally, the paper discusses future perspectives and proposes specific modes of compliance.
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Hoffmann, Thomas, et Gunnar Prause. « On the Legal and Economic Implications of Tele-Driving ». Machines 11, no 3 (27 février 2023) : 331. http://dx.doi.org/10.3390/machines11030331.
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While the idea of autonomous vehicles has been enthusiastically embraced by scientists and commercial markets alike, ranging from solving the last mile problem across shared economy models in various segments to human transportation logistics, more than just a few aspects require further development before driverless urban logistics can be organized more thoroughly and meaningfully for our practical purposes. Before fully autonomous vehicles become standard, many of these shortcomings can be addressed (in part) by the remote operation of vehicles. Besides the various technological challenges, remote operation of vehicles also has many important legal and economic implications, impacting a wide area, including data protection, liability for torts performed, and mundane fields such as road traffic law. Based on a case study of a start-up developing remote operation solutions in Germany (Vay), this paper analyses and further develops the regulatory framework of remote operation solutions by highlighting their legal and economic implications. Since remote operation solutions are comprised of cyber-physical systems, this research is located in the context of Smart Cities and Industry 5.0, i.e., our research contributes to the related regulatory framework of the Smart City concept as well as to Industry 5.0 in international terms. Finally, the paper discusses future perspectives and proposes specific modes of compliance.
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Lahe, Janno. « German Transplants in Estonian Tort Law : General Duties to Maintain Safety ». Juridica International 30 (13 octobre 2021) : 132–39. http://dx.doi.org/10.12697/ji.2021.30.15.
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The jurisprudence and case-law approach of German tort law – and, more broadly, German-school legal thinking in general – has found its way into Estonian case law on torts and into Estonia’s scholarly texts on jurisprudence. From among the catalogue of transplants from German tort law that have reached Estonian law or legal practice, the paper focuses on one whose importance cannot be overestimated: the concept of tort liability based on breach of the general duty to maintain safety. This domain has witnessed remarkable change since the beginning of the 2000s, when an analogous concept of liability was still unfamiliar to many Estonian lawyers. The article examines whether and to what extent the concept of liability based on the general duty to maintain safety has become recognised in Estonian legal practice in the years since. Also assessed is the relevant case law to date, for ascertainment of whether any adoption of an equivalent concept of liability has been successful and, in either event, what problems remain to be resolved. The importance of this issue extends far beyond that of individual questions: the recognition of general duties to maintain safety affects our understanding of the very structure of tort law, of that of the general composition of tort, and of the connections that link the individual prerequisites for tort liability. Furthermore, this constellation influences our thought in the field of tort law more generally and our approach to the cases emerging in real-world legal practice.
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Barker, J. Craig. « I. INTERNATIONAL COURT OF JUSTICE : JURISDICTIONAL IMMUNITIES OF THE STATE (GERMANY v ITALY) JUDGMENT OF 3 FEBRUARY 2012 ». International and Comparative Law Quarterly 62, no 3 (juillet 2013) : 741–52. http://dx.doi.org/10.1017/s0020589313000298.
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The vexed question of State immunity and the extent and application thereof has once again found its way to the International Court of Justice (the Court) in the form of the Case Concerning Jurisdictional Immunities of the State (Germany v Italy).1 On this occasion, the precise question concerned the so-called ‘territorial tort exception’ to State immunity and involved an assessment of the immunity to be granted to Germany, by Italy, in relation to compensation claims brought in Italy by Italian claimants against German armed forces and the organs of the German Reich during the Second World War.2
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Lahe, Janno. « The Concept of Fault of the Tortfeasor in Estonian Tort Law : A Comparative Perspective ». Review of Central and East European Law 38, no 2 (2013) : 141–70. http://dx.doi.org/10.1163/092598812x13274154887420.
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The fault of the wrongdoer is one of the preconditions for general tort liability. Nowadays, fault-based liability and strict liability are two equally important forms of liability that are not polar opposites but, rather, complement one another. This article focuses on the meaning of the fault of a tortfeasor. It considers the notion of fault in two European model rules (the Draft Common Frame of Reference and the Principles of European Tort Law), in the Estonian Law of Obligations Act, and also makes reference to German, French, English, and Russian tort law. We shall begin with a comparative discussion of the questions of general liability based on fault, fault capacity, various forms of fault, the burden of proving fault, and the importance of differentiating those forms of fault. Thereafter, we will treat the issues of fault in the context of liability for torts committed by another person and, also, borderline issues between fault-based liability and strict liability. This analysis seeks to offer the reader a basis for determining whether the regulations of Estonian tort law are justified or whether amendments should be considered within such a comparative-law framework.
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Cupa, Basil. « Scattered Damages : A Comparative Law Study About the Enforcement Deficit of Low-Value Damages and the Class Action Approach ». European Review of Private Law 20, Issue 2 (1 avril 2012) : 507–39. http://dx.doi.org/10.54648/erpl2012029.
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Abstract: This article will examine private enforcement mechanisms of low-value damages and their efficacy from a comparative law point of view. After giving a concise overview on the different kinds of mass torts, the specific difficulties around scattered damages will be outlined by examples such as the German value-date bank-transfer scandal. In order to further evaluate the private enforcement mechanisms of scattered damages, a succinct examination of the US class action will first show what the requirements for a class action are and then how rational apathy can be overcome by creating financial incentives for the Bar. The drawbacks of abusive effects, which set the bridge for a European debate on the topic, will also be discussed. As will be seen, the EU is quite active but lacks a competence to enact a directive in the field of collective redress. At Member State level, Germany and the Netherlands will be looked at to see what alternative systems of collective redress exist, though these suffer from a major lack of efficiency. In conclusion, it is argued, why scattered damages need to be addressed using two different approaches: While minor damages call for private enforcement, trifle damages should, due to abusive effects, not be enforced privately, but because of the public interest involved be left to the cartel authorities or other public enforcers. Résumé: Cet article examinera l'application des mécanismes de dommages de faible valeur ainsi que leur efficacité en s'appuyant sur la comparaison des pratiques législatives de plusieurs pays. Après une présentation rapide des différents types de dommages de masse, les difficultés particulières qui entourent les dommages disperses seront examinées sur la base d'exemples tels que le scandale bancaire du transfert de date de valeur en Allemagne. Afin de mieux appréhender l'application privée des mécanismes de dommages dispersés, une analyse poussée des class actions en vigueur aux Etats-Unis sera effectuée. Les conditions préalables liées à une class action seront discutées et il sera démontré comment l'apathie rationnelle peut être maîtrisée par la création d'incitations financières par le Barreau. Les inconvénients des effets abusifs, ayant mené à un débat Européen, seront également discutés. Nous verrons que l'Union Européenne est active en la matière, bien qu'elle manque de compétence dans l'élaboration d'une directive sur les recours collectifs. D'un point de vue national, l'Allemagne et les Pays-Bas seront analysés afin de mettre en perspective leurs systèmes alternatifs de réparations collectives, même si ces derniers souffrent d'un certain manque d'efficacité. Pour conclure, il sera démontré en quoi le jugement des dommages dispersés doit nécessairement être appréhendé de deux manières différentes: Les dommages mineurs impliquent une application privée, alors que les dommages minimes, du fait de leurs effets abusifs, doivent être jugés publiquement, réprimés par l'Autorité de la Concurrence ou d'autres sources d'autorité.
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Terwindt, Carolijn, Sheldon Leader, Anil Yilmaz-Vastardis et Jane Wright. « Supply Chain Liability : Pushing the Boundaries of the Common Law ? » Journal of European Tort Law 8, no 3 (10 janvier 2018) : 261–96. http://dx.doi.org/10.1515/jetl-2017-0011.
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AbstractOn 29 August 2016, in a claim by Pakistani survivors and legal heirs against German retailer KiK for injuries and deaths during a fire at a factory supplying jeans in Karachi, German judges accepted jurisdiction and granted legal aid to the Pakistani claimants to cover the legal fees. The case pending before the German court thus poses the question of supply chain liability. Taking the lawsuit by the Pakistani plaintiffs against KiK in Germany as a case study, this article provides an analysis of the available legal grounds for such liability. Economic changes have ushered in linkages between purchasers and suppliers that call for strong principles of liability – principles that are already embedded in the law but which need fresh articulation and application. English courts have only recently recognised that under certain circumstances, liability might attach to a parent company under the tort of negligence for damage to third parties ostensibly caused by its subsidiary. The KiK case is testing the extension of such liability to certain supply chain relationships. Beyond that, the case is also testing the application of the rules on non-delegable duties and vicarious liability in the supply chain context. Even if the court disagrees with the claimants’ position, the novel arguments advanced in this case are likely to be the starting point for an important debate about the proper fit between traditional tort law and the fast changing commercial and employment relationships of the 21st century.
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Schreck, Benjamin. « Cycling and designing for cyclists in Germany : Road safety, Guidelines and Research ». Transactions on Transport Sciences 8, no 1 (14 avril 2017) : 44–57. http://dx.doi.org/10.5507/tots.2017.007.
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Reichart, Peter A., Frank Neuhaus et Mallika Sookasem. « Prevalence of torus palatinus and torus mandibularis in Germans and Thai ». Community Dentistry and Oral Epidemiology 16, no 1 (février 1988) : 61–64. http://dx.doi.org/10.1111/j.1600-0528.1988.tb00557.x.
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Wagner, T., L. M. Uhlmann, D. DeVol et I. Rethfeldt. « Factors influencing the outcome of the Medical-Psychological Assessment of speed-affine drivers in Germany ». Transactions on Transport Sciences 9, no 2 (22 décembre 2018) : 57–66. http://dx.doi.org/10.5507/tots.2018.013.
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Wang, Qiang. « In a Cage of Law : Liability Imputation System in the Tort Law on Kept Animals A ChineseGerman Comparative Study ». European Review of Private Law 27, Issue 3 (1 juin 2019) : 617–45. http://dx.doi.org/10.54648/erpl2019030.
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The imputation of liability for damages caused by kept animals found in China’s Tort Law is a unique, synthetic, and multidimensional dual system. On the one hand, hazard-based liability is the dominant factor, and on the other is fault-based liability the auxiliary factor. The Tort Law on kept animals is oriented towards the types of liability for damages caused by kept animals, rather than towards categories of animal types, and it categorizes liability degrees under both normal and special circumstances. While underlining the merits achieved by this liability imputation system in terms of its structure (on the macro-level), this Article also probes into the problems and difficulties arising out of some key junctures (on the micro-level), especially as the system is put into practice and its operational complexity is revealed. Because of the strong affinity of the Chinese civil law, and especially tort law, with its German counterpart, this Article references the German tort law on animal keeper’s liability for an historical and comparative legal analysis, bringing more light to the Chinese system of liability. The imputation of liability for damages caused by kept animals found in China’s Tort Law is a unique, synthetic, and multidimensional dual system. On the one hand, hazard-based liability is the dominant factor, and on the other is fault-based liability the auxiliary factor. The Tort Law on kept animals is oriented towards the types of liability for damages caused by kept animals, rather than towards categories of animal types, and it categorizes liability degrees under both normal and special circumstances. While underlining the merits achieved by this liability imputation system in terms of its structure (on the macro-level), this Article also probes into the problems and difficulties arising out of some key junctures (on the micro-level), especially as the system is put into practice and its operational complexity is revealed. Because of the strong affinity of the Chinese civil law, and especially tort law, with its German counterpart, this Article references the German tort law on animal keeper’s liability for an historical and comparative legal analysis, bringing more light to the Chinese system of liability.
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Janoušková, Anežka. « Generální prevenční povinnost v systému deliktního práva ». AUC IURIDICA 68, no 2 (2 juin 2022) : 163–72. http://dx.doi.org/10.14712/23366478.2022.26.
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The paper at hand deals with role and function of the general prevention duty in tort law as introduced by the Czech Civil Code in 2014. The general prevention duty has been taken over from the former Civil Code with some minor legislative amendments. On the other hand, basic rules for tort liability have changed significantly. As opposed to the previous general tort law provision, the new tort law was modelled upon the German concept of liability. However, German tort law does not explicitly provide for a general prevention duty. As the paper points out, this creates a unique combination of rules that need to be examined and discussed thoroughly. The paper at hand strives to be part of the discussion and tackle the issue of whether the traditional understanding of the general prevention duty needs to be reassessed and if so, how. It poses major questions, which arise due to the aforementioned changes. It further evaluates existing opinions on the matter and elaborates on possible solutions to the problem.
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Goudkamp, James, et Lorenz König. « Illegal Earnings ». Journal of European Tort Law 9, no 1 (3 mai 2018) : 54–80. http://dx.doi.org/10.1515/jetl-2018-0103.
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AbstractThis article addresses the principles of tort law that govern claims in respect of lost illegal earnings. It focuses on common law jurisdictions (and the law in the United Kingdom in particular) where such claims, despite apparently being commonplace, have been largely ignored by academics. It describes the existing law and calls in aid in this regard a four-fold taxonomy of cases. The article then turns attention to how claims in respect of lost illegal earnings ought to be decided. At this juncture, the article looks to ideas emanating from German tort law, which has developed a highly sophisticated jurisprudence on the subject of illegal earnings. The German approach, stated simply, requires tort law to defer to rules in other departments of private law. If, for example, contract law would not protect an interest that a claimant has in a particular transaction by reason of the transaction being tainted with illegality, tort law will not allow a claimant indirectly to obtain the benefits of that transaction via a claim for lost illegal earnings. It is argued that the German solution holds considerable promise and merits consideration as a serious alternative to the significantly more complicated principles that the common law courts have developed, which principles currently lack any thoroughgoing rationalisation.
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Brüggemeier, Gert. « The Civilian Law of Delict : A Comparative and Historical Analysis ». European Journal of Comparative Law and Governance 7, no 4 (5 décembre 2020) : 339–83. http://dx.doi.org/10.1163/22134514-bja10007.
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Abstract This article explores the civilian tradition of the European law of delict. Part 1 tells the story of the birth of modern civil law of delict in the 19th century codifications in continental Europe, rooted in Roman law and Enlightenment Natural Law. Examples are the French and German codes, and the Japanese as a legal transplant. Fault, unlawfulness (Rechtswidrigkeit), damage, and causation are the central categories. Part 2 focuses on the challenges of industrialisation: enterprises as new actors, industrial accidents, technical risks, insurance. This part discusses the changes the civil law of delict and the common law of torts underwent to cope with these challenges. Part 3 draws some consequences from these developments. It outlines the basic structures of a postmodern civil law of delict, explicitly differentiating it from the law of torts, and as a basis for further developments in 21st century. This structure has three main features: liability for personal fault, liability for defective business activities, and Gefährdungshaftung.
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Janssens, Melanie. « Nervous shock liability : A comparative study of the law governing the principles of nervous shock in England, the Netherlands, Germany and France ». European Review of Private Law 6, Issue 1 (1 mars 1998) : 77–104. http://dx.doi.org/10.54648/199046.
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Nervous shock, as a type of psychiatric damage, is dealt with under the rubric of tort law. Establishing liability for negligently inflicted nervous shock is an intricate task, not least because of the many policy considerations that may impose control mechanisms on the award of damages. To be capable of compensation, a nervous shock claim must fulfil certain criteria, the clarity and preciseness of which leaves much to be desired. In this article the legal systems of four European countries, viz. England, the Netherlands, Germany and France, as they relate to nervous shock liability under tort law are compared and contrasted.
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Banakas, Stathis. « Liability for Incorrect Financial Information : Theory and Practice in a General Clause System and in a Protected Interests System ». European Review of Private Law 7, Issue 3 (1 septembre 1999) : 261–86. http://dx.doi.org/10.54648/252529.
Texte intégralRésumé :
This paper is a comparative study of the remedies available for economic losses caused by incorrect financial advice or information in a system of extracontractual liability working with General Clauses (French law), and two other systems working with restrictive concepts of tort liability intended to relativise the protection of economic interests (English and German law). The extent to which recovery for such losses is allowed in the three legal systems is analysed and compared, and the practical significance of the conceptual differences considered. Additionally, the paper discovers the emergence of the new idea of voluntary assumption of responsibility as a foundation of tort liability serving different dogmatic and legal policy goals in English and German law.
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Mandapathil, Magis, et Jens E. Meyer. « Acceptance and adoption of transoral robotic surgery in Germany ». European Archives of Oto-Rhino-Laryngology 278, no 10 (7 février 2021) : 4021–26. http://dx.doi.org/10.1007/s00405-021-06623-w.
Texte intégralRésumé :
Abstract Purpose Since its introduction over a decade ago, the use of robotic surgery (RS) in head and neck surgery has widely spread around the globe, with very differential adoption of this novel surgical technique in different parts of the world. In this study, we analyze the acceptance and adoption of robotic surgery in the head and neck in Germany. Materials and methods A cross-sectional analysis using a questionnaire evaluating the acceptance and adoption of RS was performed. Questionnaires were distributed to all chairmen /-women of Otorhinolaryngology, Head and Neck Surgery Departments in Germany. Results A total of 107 respondents completed the questionnaire (65.2%). At university hospitals, 71.4% of the respondents indicated that a robotic system was available, and 21.4% responded that robotic surgery was performed at their institution; 22.7% and 0.04%, respectively, at non-university hospitals. The overall adoption rate was 0.8%. The most common cases performed were TORS resection in the oropharynx. Main reasons for not adopting this technique were costs, lack of interest and available co-operations. Conclusion This study provides evidence of the extent of adoption of TORS in Germany; main perceived barriers to adoption are costs with lack of cost-covering reimbursement and insufficient co-operations with other disciplines as well as hospital administration resulting in a very low adoption rate of this technique over the past decade. Results from this study may assist in decision-making processes on adopting this technique in the future.
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O’Callaghan, Patrick. « False Privacy and Information Games ». Journal of European Tort Law 4, no 3 (1 novembre 2013) : 282–305. http://dx.doi.org/10.1515/jetl-2013-0019.
Texte intégralRésumé :
AbstractThis paper is a critique of false privacy, the proposition that privacy’s protective remit should extend to information that is entirely false. It argues that there are conceptual as well as doctrinal problems associated with such an action in tort law. First, drawing on the work of the American sociologist, Erving Goffman, the paper challenges the idea that the authentic self can be recognised in law. Second, the paper argues that false privacy sits uneasily with tort law’s doctrinal framework. While the paper focuses on English tort law, it pursues its lines of argument in a comparative context, exploring how German and US law give expression to false privacy.
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Nästega°rd, Emil. « The Tort Liability of CRAs in Europe and the Need for a Harmonized Proximity Requirement at the Union Level ». European Business Law Review 31, Issue 5 (1 septembre 2020) : 799–818. http://dx.doi.org/10.54648/eulr2020030.
Texte intégralRésumé :
The union-wide civil liability regime for credit rating agencies relies on the national private laws of the Member State to a large extent. To prevent credit rating agencies from shopping for the most restrictive national private laws it is important that the Member States find common ground with respect to the interpretation and application and of central liability elements, such as the proximity requirement. This article focuses on identifying proximity requirements in the national tort laws of England, France, Germany and Sweden and commonalities regarding their application and interpretation. Such commonalities can form the basis for a harmonized interpretation and application of the proximity requirement in CRA liability cases. Pure economic loss, rating agencies, proximity requirement, tort liability, European private law, harmonization
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Sheehan, Duncan. « Negotiorum Gestio : A Civilian Concept in the Common Law ? » International and Comparative Law Quarterly 55, no 2 (avril 2006) : 253–80. http://dx.doi.org/10.1093/iclq/lei081.
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AbstractThis paper assesses whether English law recognizes a concept of negotiorum gestio. Claimants intervening in other' affairs and seeking restitution or reimbursement of expenses are often labeled ‘officious’, and disallowed relief. That, however, gives a misleading impression of English law. English law does recognize a concept of negotiorum gestio, which while very different to that found in German law, has parallels to versions found in other Civilian systems. It provides a cause of action to recover the intervenor's expenses, and any loss suffered during the intervention. It also provides a defence to the intervenor's intentional torts, although negligent intervenors will remain liable for their negligence
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Thiede, Thomas. « Civil Liability of Court-Appointed Experts in German Law ». European Review of Private Law 21, Issue 4 (1 août 2013) : 1081–89. http://dx.doi.org/10.54648/erpl2013062.
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Abstract: This article highlights some distinct features of the German rules on the liability of court-appointed experts. It lays out the origins, developments and discussions of German practice and literature in this area resulting in the enactment of the statutory rule on the liability of court appointed experts in section 839a BGB as an action in tort. Further requirements of such liability, including the standard of care expected from the expert and the limits of possible compensation for losses caused by an erroneous opinion are discussed.
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Knetsch, Jonas. « Tort Law and Mass Transportation Accidents : A French-German View on Legal Challenges in Times of Market Deregulation ». Journal of European Tort Law 9, no 2 (4 septembre 2018) : 154–69. http://dx.doi.org/10.1515/jetl-2018-0108.
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Abstract The liberalisation of the coach, air and rail transport market sheds new light on a relatively unexplored field of comparative tort law: the rules governing the liability of transportation companies for accidents involving third parties. Through an assessment of recent developments under French and German Law, this article reflects on the emerging trends of those tort rules, induced or highlighted by the market opening process. The existing strict liability regimes for railway and coach carriers, already subject to a significant tightening process, raise new questions as to the exact circle of persons liable for injuries, since the market liberalisation goes hand in hand with the unbundling of infrastructure and operations.
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Griss, Irmgard. « How Judges Think : Judicial Reasoning in Tort Cases from a Comparative Perspective ». Journal of European Tort Law 4, no 3 (1 novembre 2013) : 247–58. http://dx.doi.org/10.1515/jetl-2013-0017.
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AbstractAre judges la bouche de la loi or are they the oracles of the law? An answer to this question is sought by comparing the different styles of reasoning of French, German, Austrian and UK courts of last resort in tort cases. Whereas UK judges state overtly what they think, French judges keep secret their motives. German and Austrian judges tend to maintain that legal doctrine provides an answer to even the most difficult questions. But, as regards the outcome, there are no real differences. Judges are nowhere merely the mouth of the law.
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Glinski, Carola, et Peter Rott. « Regulating Certification Bodies in the Field of Medical Devices : The PIP Breast Implants Litigation and Beyond ». European Review of Private Law 27, Issue 2 (1 avril 2019) : 403–28. http://dx.doi.org/10.54648/erpl2019021.
Texte intégralRésumé :
This article uses the breast implants scandal around the French producer Poly Implant Prothèse (PIP) to discuss the regulation of medical devices in EU law. Thereby, the specific focus is on the role of tort liability of certification bodies in complementing the public law regime of medical devices law. As tort law has not been harmonized yet at the level of EU law, national legal systems may produce different results; which indeed the PIP case demonstrates, with diverging judgments from French and German courts. Showing the deficiencies of the public law system of the Medical Devices Directive of 1993 as well as of the new Medical Devices Regulation of 2017, the article argues that tort liability is a necessary regulatory instrument to ensure that certification bodies live up to their duties under medical devices law and therefore a necessary instrument for the protection of the health and safety of patients.
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Burhop, Carsten. « Pharmaceutical Research in Wilhelmine Germany : The Case of E. Merck ». Business History Review 83, no 3 (2009) : 475–503. http://dx.doi.org/10.1017/s000768050000297x.
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This paper offers a detailed case study of the emergence, organization, and development of research and development at E. Merck. During the 1890s, revolutionary changes in the scientific knowledge base, especially the rise of bacteriological research and the entry of dyestuff producers into the pharmaceuticals market, combined with the financial distress Merck was undergoing to force the firm to reorganize pharmaceutical research as a corporate strategy. Consequently, between 1895 and 1898, Merck restructured its in-house research, forming closer ties with universities and other outside inven- tors. Merck depended on these sources to generate new products, while relying on in-house scientists to improve productive efficiency. A spate of new products was launched between the late 1890s and 1905, but, in the following years, resource constraints restricted Merck's innovative capacity.
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Gabriel, Gottfried. « Ästhetik und Politische Ikonographie der Briefmarke ». Zeitschrift für Ästhetik und Allgemeine Kunstwissenschaft 54, no 2 (2009) : 23–41. http://dx.doi.org/10.28937/1000106152.
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Die Briefmarke scheint ein so alltäglicher Gegenstand zu sein, daß ihr – von Motivsammlern einmal abgesehen – eine kunsthistorische oder gar ästhetische Aufmerksamkeit weitgehend versagt geblieben ist. Dabei hat Aby Warburg schon sehr früh die Briefmarke als ein Feld politischer Ikonographie erkannt, und auch von Walter Benjamin liegen Beobachtungen hierzu vor. Im Anschluß an frühere kulturgeschichtliche Arbeiten zur Bildersprache des deutschen Geldes untersucht der Vortrag am Bei- spiel der optischen Vergegenwärtigung des Brandenburger Tores auf Briefmarken der Weimarer Republik, des Dritten Reichs, der DDR und der Bundesrepublik die ästhetischen Darstellungs- und ikonographischen Propagandamöglichkeiten eines wenig beachteten Mediums. Stamps are so familiar to us as everyday objects that we – with the exception of philatelists – are not used to considering their aesthetic value or their place in a history of art. They have therefore seldom been systematically investigated in this light. Nevertheless, these issues have been treated by some scholars. Aby Warburg, for instance, was one of the first to identify the importance of stamps for political iconography; and Walter Benjamin has also made insightful observations in this regard. This article takes up earlier work on the cultural history of the iconography of German money. It investigates exemplarily the presentation of the Brandenburg Gate on stamps of the Weimar Republic, the Third Reich, the GDR, and the Federal Re- public of Germany, in order to elucidate more generally aesthetic forms of representation and their exploitation for purposes of propaganda.
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Gabriel, Gottfried. « Ästhetik und Politische Ikonographie der Briefmarke ». Zeitschrift für Ästhetik und Allgemeine Kunstwissenschaft 54, no 2 (2009) : 23–41. http://dx.doi.org/10.28937/6000480.
Texte intégralRésumé :
Die Briefmarke scheint ein so alltäglicher Gegenstand zu sein, daß ihr – von Motivsammlern einmal abgesehen – eine kunsthistorische oder gar ästhetische Aufmerksamkeit weitgehend versagt geblieben ist. Dabei hat Aby Warburg schon sehr früh die Briefmarke als ein Feld politischer Ikonographie erkannt, und auch von Walter Benjamin liegen Beobachtungen hierzu vor. Im Anschluß an frühere kulturgeschichtliche Arbeiten zur Bildersprache des deutschen Geldes untersucht der Vortrag am Bei- spiel der optischen Vergegenwärtigung des Brandenburger Tores auf Briefmarken der Weimarer Republik, des Dritten Reichs, der DDR und der Bundesrepublik die ästhetischen Darstellungs- und ikonographischen Propagandamöglichkeiten eines wenig beachteten Mediums. Stamps are so familiar to us as everyday objects that we – with the exception of philatelists – are not used to considering their aesthetic value or their place in a history of art. They have therefore seldom been systematically investigated in this light. Nevertheless, these issues have been treated by some scholars. Aby Warburg, for instance, was one of the first to identify the importance of stamps for political iconography; and Walter Benjamin has also made insightful observations in this regard. This article takes up earlier work on the cultural history of the iconography of German money. It investigates exemplarily the presentation of the Brandenburg Gate on stamps of the Weimar Republic, the Third Reich, the GDR, and the Federal Re- public of Germany, in order to elucidate more generally aesthetic forms of representation and their exploitation for purposes of propaganda.
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Bertram, Daniel. « Environmental Justice “Light” ? Transnational Tort Litigation in the Corporate Anthropocene ». German Law Journal 23, no 5 (juin 2022) : 738–55. http://dx.doi.org/10.1017/glj.2022.45.
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AbstractCorporations are notoriously powerful actors in the current configuration of our globalized economy. Their activities play a key role in shaping a new age of ecological precarity—the Anthropocene. Much of this environmental damage occurs in cross-border settings, hampering victims’ access to legal remedies due to widespread corporate impunity and institutional hurdles in host states. Several transnational lawsuits have recently tested the willingness of European home state judiciaries to adjudicate the extraterritorial conduct of domestic corporations. To contribute to a more nuanced understanding of this novel phenomenon, this article analyzes three legal sagas from a comparative perspective: Vedanta v. Lungowe (England & Wales), Dooh v. Shell (The Netherlands) and Lliuya v. RWE (Germany). It argues that transnational tort suits remain a problematic vehicle for the attainment of procedural and substantial environmental justice. The inherent limitations of tort law, extra-legal hurdles to transnational litigation, and the socio-cultural contingency of legal institutions severely circumscribe the space for legal contestations of the corporate Anthropocene.
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Diniz, Sheyla Castro, et Danilo Ávila. « A canção pode morrer, mas eu não vou morrer, não... » Música Popular em Revista 5, no 2 (26 août 2018) : 146–99. http://dx.doi.org/10.20396/muspop.v5i2.13141.
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Kiko Dinucci (1977-), compositor, cantor, instrumentista, e também cineasta e designer gráfico, é um dos artistas mais representativos da cena musical independente paulistana. Para além do trabalho solo e de uma porção de projetos com compositores de sua geração, como Douglas Germano, e com figuras renomadas, como Elza Soares, Kiko integra o grupo Passo Torto, junto a Rodrigo Campos, Rómulo Fróes e Marcelo Cabral, e, desde 2008, ao lado da vocalista Juçara Marçal e do saxofonista Thiago França, o trio Metá Metá, cujos discos e repercussão somam críticas elogiosas tanto no Brasil quanto no exterior.
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Booth, N. B. « Propertius 4.1.8 ». Classical Quarterly 37, no 2 (décembre 1987) : 528–29. http://dx.doi.org/10.1017/s0009838800030822.
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The manuscript version of this line, apart from a nonsensical variant tutus for bubus, is et Tiberis nostris advena bubus erat. The trouble here has been that scholars have taken advena to mean ‘stranger’, ‘foreigner’, ‘alien’, or German ‘fremd’. Clearly the sentence and Tiber was a stranger to our oxen makes no sense in the context, and for this reason many scholars have either produced strange translations (‘alien Tiber served our oxen’, Butler and Barber) or else have dabbled in dubious emendation (temptus Baehrens, tortus Postgate, Tuscus Havet in place of bubus).
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Andrelang, Christian. « Damages for the Infringement of Art. 81 EC by Cartel Agreements According to sec. 33(3) GWB : The Changes of Law Concerning “Protective Law” Requirement and the “P ». World Competition 30, Issue 4 (1 décembre 2007) : 573–93. http://dx.doi.org/10.54648/woco2007039.
Texte intégralRésumé :
On 1 July 2005, the German legislator amended 33 GWB [Act against Restrictions of Competition] and introduced a specific statutory basis for the private enforcement of European Competition Law. This article focuses on damages claims for the infringement of Art. 81 EC by cartel agreements in German courts and highlights the legal changes to the eligibility to damages. Previously, German courts were forced to utilize general tort law when awarding damages for the infringements of Art. 81 EC. However, some German courts were very reluctant to award damages. Only a person who was the direct target of cartel was considered to be eligible for damages. The article establishes that this jurisdiction, to which some courts might still resort when judging on damages claims for cartel agreements prior to 1 July 2005, is inconsistent with European Law principles and irreconcilable with the ECJ’s decision in Courage Ltd. v. Crehan. Furthermore, the article addresses the statutory exclusion of the “passing on“ defence. Cartel members are now prevented from arguing that applicants passed higher prices on to their customers and did not suffer any economic loss. Yet, as far as cartel-inflicted prices of processed goods are concerned the exclusion of the “passing on“ defence can prove to be irrelevant depending on the method of assessing damages.
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Mackiewicz, Marta. « The Condition of Fault in Private Enforcement of Competition Law – a Comparative Analysis of U.S. v. Polish and European Approach ». Yearbook of Antitrust and Regulatory Studies 12, no 21 (2020) : 71–97. http://dx.doi.org/10.7172/1689-9024.yars.2020.13.21.3.
Texte intégralRésumé :
The purpose of the Polish Act on Claims for Damages for Remedying the Damage Caused by Infringements of Competition Law, based on and implementing EU law – the Damages Directive, was to enable undertakings to effectively use private enforcement of their damages claims from competition law offenders. Infringement of competition law is classified as a tort according to the said Act on Claims. Therefore, the Act on Claims refers to tort liability rules. The conditions of classic tort liability in domestic law do not have exactly the same dogmatic meaning and scope as the conditions of public or private liability for the infringements of domestic and EU competition law. In practice, their application by national courts may rise many questions regarding conformity between domestic and EU law. This paper aims to analyse one of the key conditions of tort liability, that is, the fault of both the undertaking – the offenders, as well as the fault of their governing bodies and officers. If one were to understand the notion of fault within the limits laid down by civil law, and follow the literal wording of the Polish Civil Code’s provisions referring to the fault condition, the efficiency of private enforcement of damage claims arising from infringements of competition law would be doubtful. Therefore, the aim of this paper is to provide the readers with such an interpretation of the notion of fault, as a condition of liability of undertakings, that the legislative purpose of the Act on Claims is achieved and that the principles of efficiency and equivalence of the EU law are observed. In order to present a comprehensive picture, this paper will also discuss the case law of the CJEU concerning ‘anti-trust fault’, accompanied by a comparative analysis of the German and French approach to the fault condition as well as United States antitrust laws in the same area.
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Grossfeld, Bernhard. « Book Review – Basil Markesinis and Hannes Unberath, The German Law of Torts : A Comparative Treatise - Basil Markesinis and Hannes Unberath, The German Law of Torts : A Comparative Treatise (4th Edition 2002), Oxford and Portland, Oregon, Hart Publishing. 1050 Pages. ISBN 1-84113-297-7, $ 75.00. » German Law Journal 4, no 5 (1 mai 2003) : 511–13. http://dx.doi.org/10.1017/s2071832200016163.
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Drobnig, Ulrich. « Das neue niederländische bürgerliche Gesetzbuch aus vergleichender und deutscher Sicht ». European Review of Private Law 1, Issue 1/2 (1 mars 1993) : 171–88. http://dx.doi.org/10.54648/erpl1993011.
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Abstract. On January 1, 1992, the core part of the patrimonial law contained in the New Civil Code came into force in the Netherlands. With the exception of Book 4 on inheritance law and parts of Book 7 on certain specific types of contract, the task of reform aimed at creating a New Civil Code, which has lasted for decades, is now complete. The New Civil Code no longer makes a division between civil law and commercial law. It therefore also governs the most important institutions and contracts of commercial law: company law (Book 2) and the law of transport (Book 8) as well as commercial contracts (Book 7). Although it does not have a General Part in the style of the German code, the General Patrimonial Law is dealt with comprehensively in a separate Book (Book 3). In addition, the General Law of Obligations is also dealt with in detail in a separate Book (Book 6). The General Law of Obligations also includes important specific types of non-contractual obligations, such as management of the affairs of another, unjust enrichment and the law of tort. In contrast to the Civil Code of 1838 which was previously in force, which was greatly influenced by the French code civil, it is not so easy to point to the influences of a single foreign legal system upon the New Civil Code. Above all, it is the Romanistic law element which dominates, now as before; this applies, for instance, in the case of the law of tort and unjust enrichment. In the General Patrimonial Law, as well as in the law of contract, there are also many similarities to German law. The general clause concerned with ‘reasonableness and equity’ corresponds to the German principle of ‘Treu und Glauben’ (good faith); the provisions which govern the general conditions of business are closely related to the provisions of the relevant German law of 1976. Even the most recent German attempts to bring about a reform of the Law of Obligations have quite clearly been taken into account, such as the rule regarding the influence of changed circumstances and the rule governing recission of contracts. In sum the Dutch New Civil Code can be characterised as an original and mature codification, in which much independent thought, practical experience, and wide comparative research have been invested. As the newest European Codex for civil law, the Civil Code will also certainly exercise an influence upon the endeavours of the countries of Eastern and South-Eastern Europe who are seeking to adjust and build their civil and commercial laws so that they meet the demands of a free legal order based on a market economy.
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BAYGUSHEVA, Yu V. « THE THEORIES OF THE OBLIGATION OF A REPRESENTATIVE WITHOUT AUTHORITY TO A THIRD PARTY : THE EXPERIENCE OF GERMAN CIVIL LAW AND ITS USE IN RUSSIA ». Civil Law Review 21, no 2 (12 juillet 2021) : 199–216. http://dx.doi.org/10.24031/1992-2043-2021-21-2-199-216.
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The purpose of the study is to determine the basis of the occurrence and the legal nature of the obligation of a representative without authority in case of refusal to approve the contract conducted by him. To achieve this purpose, the author turns to the history of para. 1 p. 1 and p. 3 of Art. 183 of the Civil Code of the Russian Federation and identifies the theoretical model that underlies these prescriptions. The legal regulation of the obligation of the representative was borrowed by the domestic legislator from the draft and the final text of the German BGB. The prescriptions for this undertaking were formed as a result of a heated debate that unfolded in the second half of the 19th century among German civil law experts. They developed the basic theories of an obligation of a representative without authority: a theory of tort liability, a theory of obligation from a guarantee agreement, a theory of pre-contractual liability and a theory of obligation to protect trust. The last theory turned out to be the most viable and was enshrined in the final version of § 179 BGB, and therefore in the paragraphs of Art. 183 of the Civil Code of the Russian Federation. The essence of this theory is that if a representative without authority concludes a contract on behalf of the principal who then refuses to approve, then a representative has an obligation to compensate a third party (counterparty) for property damage; this obligation follows from the prescription of the law and the trust of a third party in the existence of authority that the representative shows, regardless of the representative’s fault. The obligation of the representative without authority is not a tort liability or obligation from the guarantee agreement; this obligation is precontractual in nature, however, it cannot be considered as liability for unfair negotiation, as it arises without the fault of the representative. The theory of obligation to protect trust has not been well covered in Russian literature. The few domestic authors who answer the question about the basis of the occurrence and the legal nature of the obligation of a representative are supporters of the theory of tort liability, the theory of obligation from a guarantee agreement or the theory of pre-contractual liability.
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Angelo, A. H. « Fundamentals of European Civil Law ». Victoria University of Wellington Law Review 27, no 2 (1 juillet 1997) : 388. http://dx.doi.org/10.26686/vuwlr.v27i2.6118.
Texte intégralRésumé :
This article is a book review of Martin Vranken Fundamentals of European Civil Law (Federation Press, Sydney, 1997) 290 + xiv pages including Appendix, Bibliography and Index. Soft cover, NZ$45. Angelo states that the book is very tightly and clearly presented, providing a good introductory text for several purposes including the central topics of comparative law, a basic introduction to the law of contract, tort labour law and commercial company law in the French and German systems, as well as within the context of the European Union. Angelo concludes that the book provides a reasoned and correct view of the impact of the European Union on aspects of the private law of the member states.
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Fedtke, Jörg. « The Reform of German Tort Law ». European Review of Private Law 11, Issue 4 (1 août 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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Coggiola, Nadia. « Book Review : Markesinis’S German Law Of Torts, Basil Markesinis, John Bell & ; André Janssen Eds. 5Th Ed., Hart 2019. » European Review of Private Law 29, Issue 2 (1 avril 2021) : 393–98. http://dx.doi.org/10.54648/erpl2021019.
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Nicholas, B. « The German Law of Torts. A Comparative Introduction by B. S. Markesinis. 2nd edition. Clarendon Press. Oxford. 1990, xliv + 750 pp. 27.50 ». Yearbook of European Law 11, no 1 (1 janvier 1991) : 616–17. http://dx.doi.org/10.1093/yel/11.1.616-a.
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Witt, John Fabian. « Rethinking the Nineteenth-Century Employment Contract, Again ». Law and History Review 18, no 3 (2000) : 627–57. http://dx.doi.org/10.2307/744072.
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Legal historians have turned with renewed energy in recent years to the project of fleshing out the myriad rules by which the common law of the free labor employment contract structured social relations in nineteenth-century America. Of course, labor relations have always been prominent in the literature. The German sociological tradition has long taught us to see in the legal protection of property rights a source of coercive power over the working classes. And for decades now, historians have studied the great nineteenth-century labor conspiracy cases, which generated leading cases and opinions by judges such as Shaw and Holmes. But there is a new wrinkle in recent accounts of nineteenth-century labor law. Much of the law of property, contract, and tort bears a relatively self-evident (though still too infrequently remarked on) relation to the relative bargaining power of the parties to an employment contract. Property rules, along with a whole host of attendant tort doctrines such as nuisance and trespass, allocate resources among parties. As Robert Hale observed long ago, property rules set the coercive power of A to exclude B from those resources that belong to A, whether A be a prospective employee excluding an employer from the employee's labor power, or an employer excluding a would-be employee from the means of production. In similar fashion, rules of contract and tort that define the weapons that parties may deploy in competition or bargaining also shape the relative bargaining power of social actors. Thus, doctrines of duress, fraud, unconscionability, and adequacy of consideration, and the law of labor conspiracies and competition all create immutable background rules (or sometimes inalienable entitlements) that have considerable impact on bargaining power. In Halean language, we might say that the law of duress, for example, coercively precludes the strong from forcing the weak to consent to a particular deal, or that the doctrine of fraud coercively precludes the slick from outfoxing the dupes.
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Papp, Nikolett. « A munkahelyi egészségsérelmek kompenzációjának felelősségbiztosítási modellje Magyarországon és az Európai Unióban ». Erdélyi Jogélet 3, no 4 (26 janvier 2021) : 111–25. http://dx.doi.org/10.47745/erjog.2020.04.09.
Texte intégralRésumé :
"One of the most important issues in the design of national work injury compensation systems is how the two main possible routes of liability relate: on the one hand, the non-tort compensation (social security) model and, on the other, the tort compensation (employers’ liability under civil or labour law) model. In the Hungarian system of accident compensation in labour law, the employee is primarily entitled to certain benefits within the framework of social insurance and may claim damages in excess of this in damages lawsuits. Employers’ liability schemes can be supplemented by voluntary liability insurance solutions. Liability insurance contracts protect both parties: employers are protected against unplanned payments, possibly large amounts of compensation, and the outcome of potentially unpredictable compensation lawsuits, while it means guaranteed coverage for the employee in case of damage. The introduction of compulsory liability insurance for employers is an issue that arises from time to time. In some countries, employers are required to take out liability insurance, such as the United Kingdom, Germany, France, and Austria. In insurance-based models, the route of compensation plays a marginal role. In Hungary, the penetration of liability insurance is low; however, there is currently no legislative intention to make liability insurance more extensive or mandatory for employers. In general, however, there is no universal model for accident compensation in labour law. There is no such benchmark at the European Union level either, and it can be said that there is no explicit intention to fully harmonize Member State regulations. In this study, I examine the consequences of the mandatory or wider application of liability insurance, the regulatory concepts that exist, and the role that the European Union plays in regulating the issue."