Search results for: tort law

Authors: Sara Vora (Hoxha)

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An essential feature of any international lawsuit is the ability of the parties to pick the law that would apply in the event of a tort claim. This option to choose the law to use in tort cases is based on Article 14 and 4/3 of the Rome II Regulation. The purpose of this article is to examine the boundaries of this freedom, as well as its relevance in international legal disputes. The article opens with a brief introduction to the basics of tort law. After a short introduction, the article demonstrates why Article 14 and 4/3 of the Rome II Regulation are so crucial to the right to select appropriate law in tort cases. The notion of the right to select the law to use in tort cases is examined, along with its breadth and possible restrictions. The article presents case studies to demonstrate how the right to select relevant law in tort might be put into practise. Case results and the judges' rationales for their rulings are examined. The possible influence of the right to select applicable law in tort on the process of harmonisation is also explored in this study. The results are summarised and the primary research question is addressed in the last section of the paper. In conclusion, the parties' ability to pick the law that rules their dispute via the freedom to choose relevant law in tort is a crucial feature of cross-border litigation. Despite certain restrictions, this freedom is nevertheless an important part of the legal structure that governs international conflicts.

Keywords: applicable law, tort, Rome II regulation, freedom to choose, cross-border litigation, harmonization of tort law

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Authors: Isabel Mousinho de Figueiredo

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Traditionally it was held that the king can do no wrong. History has proved otherwise, and both the rule of law and the open society call for a diversification of checks and balances, including civil liability in tort. Most jurisdictions are right to fear the excessive cost of such liability for the innocent taxpayer. There are notwithstanding extreme instances where refusing compensation is perceived to be outrageous. Many public bodies end up handing out on a voluntary basis, which leaves room to question its legality and merit. Instead, some criteria can shed light on the fairness of an underlying rationale of such compensation and cordon it off within reasonable limits.

Keywords: comparative law, liability of legislators, public bodies, tort law

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Authors: Isabel Mousinho de Figueiredo

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Pure economic loss can be brought into the 21st century and become a useful tool to keep the tort of negligence within reasonable limits, provided the concept is minutely reexamined. The term came about when wealth was physical, and Law wanted to be a modern science. As a tool to draw the line, it leads to satisfactory decisions in most cases, but needlessly creates distressing conundrums in others, and these are the ones parties bother to litigate about. Economic loss is deemed to be pure based on a blind negative criterion of physical harm, that inadvertently smelts vastly disparate problems into an indiscernible mass, with arbitrary outcomes. These shortcomings are usually dismissed as minor byproducts, for the lack of a better formula. Law could instead stick to the sound paradigms of the intended rule, and be more specific in identifying the losses deserving of compensation. This would provide a better service to Bench and Bar, and effectively assist everyone navigating the many challenges of Accident Law.

Keywords: accident law, comparative tort law, negligence, pure economic loss

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Authors: Maria Lubomira Kubica

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The paper reveals the birth and evolution of the British precedent Rylands v. Fletcher that, once adopted on the other side of the Ocean (in United States), gave rise to a general clause of liability for abnormally dangerous activities recognized by the §20 of the American Restatements of the Law Third, Liability for Physical and Emotional Harm. The main goal of the paper was to analyze the development of the legal doctrine and of the case law posterior to the precedent together with the intent of the British judicature to leapfrog from the traditional rule contained in Rylands v. Fletcher to a general clause similar to that introduced in the United States and recently also on the European level. As it is well known, within the scope of tort law two different initiatives compete with the aim of harmonizing the European laws: European Group on Tort Law with its Principles of European Tort Law (hereinafter PETL) in which article 5:101 sets forth a general clause for strict liability for abnormally dangerous activities and Study Group on European Civil Code with its Common Frame of Reference (CFR) which promotes rather ad hoc model of listing out determined cases of strict liability. Very narrow application scope of the art. 5:101 PETL, restricted only to abnormally dangerous activities, stays in opposition to very broad spectrum of strict liability cases governed by the CFR. The former is a perfect example of a general clause that offers a minimum and basic standard, possibly acceptable also in those countries in which, like in the United Kingdom, this regime of liability is completely marginalized.

Keywords: Rylands v. Fletcher, strict liability, dangerous activities, general clause

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Authors: Maria Lubomira Kubica

Abstract:

The paper reveals the birth and evolution of the British precedent Rylands v. Fletcher that, once adopted on the other side of the Ocean (in United States), gave rise to a general clause of liability for abnormally dangerous activities recognized by the §20 of the American Restatements of the Law Third, Liability for Physical and Emotional Harm. The main goal of the paper was to analyze the development of the legal doctrine and of the case law posterior to the precedent together with the intent of the British judicature to leapfrog from the traditional rule contained in Rylands v. Fletcher to a general clause similar to that introduced in the United States and recently also on the European level. As it is well known, within the scope of tort law two different initiatives compete with the aim of harmonizing the European laws: European Group on Tort Law with its Principles of European Tort Law (hereinafter PETL) in which article 5:101 sets forth a general clause for strict liability for abnormally dangerous activities and Study Group on European Civil Code with its Common Frame of Reference (CFR) which promotes rather ad hoc model of listing out determined cases of strict liability. Very narrow application scope of the art. 5:101 PETL, restricted only to abnormally dangerous activities, stays in opposition to very broad spectrum of strict liability cases governed by the CFR. The former is a perfect example of a general clause that offers a minimum and basic standard, possibly acceptable also in those countries in which, like in the United Kingdom, this regime of liability is completely marginalized.

Keywords: abnormally dangerous activities, general clause, Rylands v. Fletcher, strict liability

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Authors: Alireza Tavakoli Nia

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In order to understand the role of the injured party's fault in dividing liability, we studied its historical background. In common law, the traditional contributory negligence rule was a complete defense. Then the legislature and judicial procedure modified that rule to one of apportionment. In Islamic law, too, the Action rule was at first used when the injured party was the sole cause, but jurists expanded the scope of this rule, so this rule was used in cases where both the injured party's fault and that of the other party are involved. There are some popular approaches for apportionment of damages. Some common law countries like Britain had chosen ‘the causal potency approach’ and ‘fixed apportionment’. Islamic countries like Iran have chosen both ‘the relative blameworthiness’ and ‘equal apportionment’ approaches. The article concludes that both common law and Islamic law believe in the division of responsibility between a wrongdoer claimant and the defendant. In contrast, in the apportionment of responsibility, Islamic law mostly believes in equal apportionment that is way easier and saves time and money, but common law legal systems have chosen the causal potency approach, which is more complicated than the rival approach but is fairer.

Keywords: contributory negligence, tort law, damage apportionment, common law, Islamic law

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Authors: Antonio Davola

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Moving from the evaluations operated by Richard Posner in his judgment on the case Carhart v. Halaska, the paper seeks to analyse the so-called ‘litigation troll’ phenomenon and the development of a damage claims market, i.e. a market in which the right to propose claims is voluntary exchangeable for money and can be asserted by private buyers. The aim of our study is to assess whether the implementation of a ‘damage claims market’ might represent a resource for victims or if, on the contrary, it might operate solely as a speculation tool for private investors. The analysis will move from the US experience, and will then focus on the EU framework. Firstly, the paper will analyse the relation between the litigation troll phenomenon and the patent troll activity: even though these activities are considered similar by Posner, a comparative study shows how these practices significantly differ in their impact on the market and on consumer protection, even moving from similar economic perspectives. The second part of the paper will focus on the main specific concerns related to the litigation trolling activity. The main issues that will be addressed are the risk that the circulation of damage claims might spur non-meritorious litigation and the implications of the misalignment between the victim of a tort and the actual plaintiff in court arising from the sale of a claim. In its third part, the paper will then focus on the opportunities and benefits that the introduction and regulation of a claims market might imply both for potential claims sellers and buyers, in order to ultimately assess whether such a solution might actually increase individual’s legal empowerment. Through the damage claims market compensation would be granted more quickly and easily to consumers who had suffered harm: tort victims would, in fact, be compensated instantly upon the sale of their claims without any burden of proof. On the other hand, claim-buyers would profit from the gap between the amount that a consumer would accept for an immediate refund and the compensation awarded in court. In the fourth part of the paper, the analysis will focus on the legal legitimacy of the litigation trolling activity in the US and the EU framework. Even though there is no express provision that forbids the sale of the right to pursue a claim in court - or that deems such a right to be non-transferable – procedural laws of single States (especially in the EU panorama) must be taken into account in evaluating this aspect. The fifth and final part of the paper will summarize the various data collected to suggest an evaluation on if, and through which normative solutions, the litigation trolling might comport benefits for competition and which would be its overall effect over consumer’s protection.

Keywords: competition, claims, consumer's protection, litigation

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Authors: Mohd Akram Shair Mohamad

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The relation to the infinite variety issues sprouting in sports or lex sportiva, like lex mercatoria in the early centuries, has now come of age and even begun a maturing process in the past thirty-five years or so. Lex sportiva now straddles sports management, sports medicine, tort, criminal law, employment contract, competition law and a host of multifarious activities related to sports. This has catapulted a host of legal issue and problems, demanding urgent legal solutions to actual or potential disputes. This paper discusses the nature and development of lex sportiva, and how it is able to resolve sports disputes. Resolving sports dispute via the tiresome, dilatory and expensive process of litigation is most unsuitable. Arbitration may not be equally a satisfactory solution. The paper strongly advocates the far the most effective and resolution friendly mode of settling sports disputes namely, mediation. In support it highlights numerous advantages mediation has to offer and with reference to many significant sports disputes which had been successfully resolved via mediation.

Keywords: alternative dispute resolution, mediation, arbitration, litigation

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Authors: Laura Cami Vorpsi

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This research paper examines the potential of private law as a means to promote and safeguard human rights while also addressing the associated challenges and limitations of adopting such an approach. Historically, private law mechanisms, namely contract law, tort law, and property law, have been employed to govern and oversee private relationships and transactions. Nevertheless, it is increasingly acknowledged that private law can also assume a significant role in safeguarding and advancing human rights, particularly in circumstances where the safeguards provided by public law are insufficient or inaccessible. This study assesses the benefits associated with the utilization of private law as a complementary measure to public law safeguards. These advantages encompass enhanced efficacy and efficiency of remedies, as well as the capacity to customize solutions to suit the unique requirements and circumstances of individuals. Nevertheless, the present study also considers the constraints associated with private law mechanisms, such as the financial and procedural intricacies of legal proceedings, the possibility of imbalanced negotiation power, and the potential to worsen pre-existing disparities and systemic inequities. The paper posits that the adoption of a private law-based approach to human rights necessitates a meticulous design and implementation process in order to mitigate potential risks and optimize the advantages. In conclusion, this study examines the ramifications of these discoveries on policy and practice, highlighting the necessity for heightened awareness and education regarding the capacity of private law to advance and safeguard human rights. Additionally, it underscores the significance of establishing efficient and easily accessible mechanisms for upholding human rights within the private domain. The paper concludes by providing recommendations for future research in this domain, specifically emphasizing the necessity for additional empirical investigations to assess the efficacy and consequences of private law-oriented strategies in safeguarding human rights.

Keywords: private law, human rights, promoting, protecting, access to justice

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Authors: David Gibbs-Kneller

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Only parties to a contract can enforce it. This is the privity of the contract. Carriage contracts frequently involve intermediated relationships. While the carrier and cargo-owner will agree on a contract for carriage, there is no privity or consideration between the cargo-owner and third parties. To overcome this, the contract utilizes ‘bailment on terms’ or the rule in Morris. Morris v C W Martin & Sons Ltd is authority for the following: A sub-bailee and bailor may rely on terms of a bailment where the bailor has consented to sub-bailment “on terms”. Bailment on terms can play a significant part in making litigation decisions and determining liability. It is used in standard form contracts and courts have also strived to find consent to bailment on terms in agreements so as to avoid the consequences of privity of contract. However, what this paper exposes is the false legal basis for this model. Lord Denning gave an account adumbrated of the law of bailments to justify the rule in Morris. What Lord Denning was really doing was objecting to the doctrine of privity. To do so, he wrongly asserted there was a lacuna in law that meant third parties could not avail themselves upon terms of a contract. Next, he provided a false analogy between purely contractual rights and possessory liens. Finally, he gave accounts of authorities to say they supported the rule in Morris when they did not. Surprisingly, subsequent case law on the point has not properly engaged with this reasoning. The Pioneer Container held that since the rule in Morris lay in bailments, the decision is not dependent on the doctrine of privity. Yet the basis for this statement was Morris. Once these reasons have been discounted, all bailment on terms rests on is the claim that the law of bailments is an independent source of law. Bailment on terms should not be retained, for it is contrary to established principles in the law of property, tort, and contract. That undermines the certainty of those principles by risking their collapse because there is nothing that keeps bailment on terms within the confines of bailments only. As such, bailment on terms is not good law and should not be used in standard form contracts or by the courts as a means of determining liability. If bailment on terms is a pragmatic rule to retain, it is recommended that rules governing carriage contracts should be amended.

Keywords: bailment, carriage of goods, contract law, privity

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Authors: László Schmidt

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“Post hoc ergo propter hoc” means after it, therefore because of it. In other words: If event Y followed event X, then event Y must have been caused by event X. The question of causation has long been a central theme in philosophical thought, and many different theories have been put forward. However, causality is an essentially contested concept (ECC), as it has no universally accepted definition and is used differently in everyday, scientific, and legal thinking. In the field of law, the question of causality arises mainly in the context of establishing legal liability: in criminal law and in the rules of civil law on liability for damages arising either from breach of contract or from tort. In the study some philosophical theories of causality will be presented and how these theories correlate with legal causality. It’s quite interesting when philosophical abstractions meet the pragmatic demands of jurisprudence. In Hungarian criminal judicial practice the principle of equivalence of conditions is the generally accepted and applicable standard of causation, where all necessary conditions are considered equivalent and thus a cause. The idea is that without the trigger, the subsequent outcome would not have occurred; all the conditions that led to the subsequent outcome are equivalent. In the case where the trigger that led to the result is accompanied by an additional intervening cause, including an accidental one, independent of the perpetrator, the causal link is not broken, but at most the causal link becomes looser. The importance of the intervening causes in the outcome should be given due weight in the imposition of the sentence. According to court practice if the conduct of the offender sets in motion the causal process which led to the result, it does not exclude his criminal liability and does not interrupt the causal process if other factors, such as the victim's illness, may have contributed to it. The concausa does not break the chain of causation, i.e. the existence of a causal link establish the criminal liability of the offender. Courts also adjudicates that if an act is a cause of the result if the act cannot be omitted without the result being omitted. This essentially assumes a hypothetical elimination procedure, i.e. the act must be omitted in thought and then examined to see whether the result would still occur or whether it would be omitted. On the substantive side, the essential condition for establishing the offence is that the result must be demonstrably connected with the activity committed. The provision on the assessment of the facts beyond reasonable doubt must also apply to the causal link: that is to say, the uncertainty of the causal link between the conduct and the result of the offence precludes the perpetrator from being held liable for the result. Sometimes, however, the courts do not specify in the reasons for their judgments what standard of causation they apply, i.e. on what basis they establish the existence of (legal) causation.

Keywords: causation, Hungarian criminal law, responsibility, philosophy of law

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Authors: Bill D. Geis

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Suicide wrongful death forensic cases are the fastest rising tort in mental health law. It is estimated that suicide-related cases have accounted for 15% of U.S. malpractice claims since 2006. Most suicide-related personal injury claims fall into the legal category of “wrongful death.” Though mental health experts may be called on to address a range of forensic questions in wrongful death cases, the central consultation that most experts provide is about the negligence element—specifically, the issue of whether the clinician met the clinical standard of care in assessing, treating, and managing the deceased person’s mental health care. Standards of care, varying from U.S. state to state, are broad and address what a reasonable clinician might do in a similar circumstance. This fact leaves the issue of the suicide standard of care, in each case, up to forensic experts to put forth a reasoned estimate of what the standard of care should have been in the specific case under litigation. Because the general state guidelines for standard of care are broad, forensic experts are readily retained to provide scientific and clinical opinions about whether or not a clinician met the standard of care in their suicide assessment, treatment, and management of the case. In the past and in much of current practice, the assessment of suicide has centered on the elicitation of verbalized suicide ideation. Research in recent years, however, has indicated that the majority of persons who end their lives do not say they are suicidal at their last medical or psychiatric contact. Near-term risk assessment—that goes beyond verbalized suicide ideation—is needed. Our previous research employed structural equation modeling to predict lethal suicide risk--eight negative thought patterns (feeling like a burden on others, hopelessness, self-hatred, etc.) mediated by nine transdiagnostic clinical factors (mental torment, insomnia, substance abuse, PTSD intrusions, etc.) were combined to predict acute lethal suicide risk. This structural equation model, the Lethal Suicide Risk Pattern (LSRP), Acute model, had excellent goodness-of-fit [χ2(df) = 94.25(47)***, CFI = .98, RMSEA = .05, .90CI = .03-.06, p(RMSEA = .05) = .63. AIC = 340.25, ***p < .001.]. A further SEQ analysis was completed for this paper, adding a measure of Acute Suicide Ideation to the previous SEQ. Acceptable prediction model fit was no longer achieved [χ2(df) = 3.571, CFI > .953, RMSEA = .075, .90% CI = .065-.085, AIC = 529.550].This finding suggests that, in this additional study, immediate verbalized suicide ideation information was unhelpful in the assessment of lethal risk. The LSRP and other dynamic, near-term risk models (such as the Acute Suicide Affective Disorder Model and the Suicide Crisis Syndrome Model)—going beyond elicited suicide ideation—need to be incorporated into current clinical suicide assessment training. Without this training, the standard of care for suicide assessment is out of sync with current research—an emerging dilemma for the forensic evaluation of suicide wrongful death cases.

Keywords: forensic evaluation, standard of care, suicide, suicide assessment, wrongful death

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Authors: Xiaochen Mu

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Data rights confirmation, as a key legal issue in the development of the digital economy, is undergoing a transition from a traditional rights paradigm to a more complex private-economic paradigm. In this process, data rights confirmation has evolved from a simple claim of rights to a complex structure encompassing multiple dimensions of personality rights and property rights. Current data rights confirmation practices are primarily reflected in two models: holistic rights confirmation and process rights confirmation. The holistic rights confirmation model continues the traditional "one object, one right" theory, while the process rights confirmation model, through contractual relationships in the data processing process, recognizes rights that are more adaptable to the needs of data circulation and value release. In the design of the data property rights system, there is a hierarchical characteristic aimed at decoupling from raw data to data applications through horizontal stratification and vertical staging. This design not only respects the ownership rights of data originators but also, based on the usufructuary rights of enterprises, constructs a corresponding rights system for different stages of data processing activities. The subjects of data property rights include both data originators, such as users, and data producers, such as enterprises, who enjoy different rights at different stages of data processing. The intellectual property rights system, with the mission of incentivizing innovation and promoting the advancement of science, culture, and the arts, provides a complete set of mechanisms for protecting innovative results. However, unlike traditional private property rights, the granting of intellectual property rights is not an end in itself; the purpose of the intellectual property system is to balance the exclusive rights of the rights holders with the prosperity and long-term development of society's public learning and the entire field of science, culture, and the arts. Therefore, the intellectual property granting mechanism provides both protection and limitations for the rights holder. This perfectly aligns with the dual attributes of data. In terms of achieving the protection of data property rights, the granting of intellectual property rights is an important institutional choice that can enhance the effectiveness of the data property exchange mechanism. Although this is not the only path, the granting of data property rights within the framework of the intellectual property rights system helps to establish fundamental legal relationships and rights confirmation mechanisms and is more compatible with the classification and grading system of data. The modernity of the intellectual property rights system allows it to adapt to the needs of big data technology development through special clauses or industry guidelines, thus promoting the comprehensive advancement of data intellectual property rights legislation. This paper analyzes data protection under the virtual property layer theory and two-fold virtual property rights system. Based on the “bundle of right” theory, this paper establishes specific three-level data rights. This paper analyzes the cases: Google v. Vidal-Hall, Halliday v Creation Consumer Finance, Douglas v Hello Limited, Campbell v MGN and Imerman v Tchenquiz. This paper concluded that recognizing property rights over personal data and protecting data under the framework of intellectual property will be beneficial to establish the tort of misuse of personal information.

Keywords: data protection, property rights, intellectual property, Big data

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