Comparative Private Law Notes PDF

Comparative Private Law Notes Created @October 22, 2023 12:54 AM Reviewed LAW OF TORTS IN COMMON LAW The expression of law of torts belongs to common law. In civil law tradition, its called ‘civil liability’. What...

Comparative Private Law Notes Created @October 22, 2023 12:54 AM Reviewed LAW OF TORTS IN COMMON LAW The expression of law of torts belongs to common law. In civil law tradition, its called ‘civil liability’. What is law of torts? Any responsibility that arrives from action of a man. Non contractual liability. Any liability that arises from human conduct that causes any kinds of damages to another human being. (otherwise it will be considered in the contractual area) It can or cannot be based on a specific duty. The idea is protecting, generally speaking, interests. In common law, we cannot talk about one tort. Nowadays, there is general tort of negligence originated from Donoghue v Stevenson. However, historically in common law there is no only one tort. But there is a set of responsibility depending on the fact always bearing mind how common law tradition in general is constructed. Its a factual approach system. Whenever there is a damage caused by any kind of reasons; there should be a corresponding tort. Therefore, there is not only one general law of tort but plural law of torts. (Tort in civil law tradition, there are some correspondence in German law, where as it happens in common law tradition, we don’t have one general tort. But, the German system is called ‘Typical System’. Because there is not only one general definition of what is civil liability as we have in civil law traditions ie Italian and French. But there is a list of right that violation in the code which will keep arised the civil liability. Its similar in the structure to the common law tradition rather than the general civil law one such as French and Italian legal systems.) The Relationship Between Tort and Contract: Obligation arisen from the contract - obligation arisen from the conduct, tort. Comparative Private Law Notes 1  However, some cases involve both of them. Even though the compensation is for just one of them (you cannot have compensation from contract as well as tort) But you could start an action for both. Damages could be asked only for one of them. The function of tort is compensating damages, compensating victims that suffered from the damages. In fact, we can think of the relationship between tort, law and criminal law. For example, in some criminal law cases, the victim’s heirs can get involved to criminal proceeding within a civil action in tort. In order to be compensated the for the lost of their suffer. The heirs or people who affected instead of the victim of a crime, are not a part of the criminal proceedings. However, they can enter into the criminal law proceeding within a civil action. Function of tort: Compensating Damages Function of contract: Protect Promises The roots of the contractual liability is directly depend on tort. They both seek for compensate a damage. Legal reasoning behind the development of tort law in common law coincide with the legal reasoning in common law general. Which kind of rights recognized by the court was the starting point of this evolution. There is a problem —— factual approach —— solving the problem with a kind of writ (legal action) There are different categories of tort. Each of them has some specific elements that characterizes specific tort: Tort of Nuisance: The term of nuisance first emerged in the 13th century and was connected to the actions that took place on the land of defendant. According to the Chancellor in common law, a writ could be obtained because of the violation of rights in particular the writ of nuisance. The writ connected to the: action, procedure, court that is in charge of hearing these kind of courts. Comparative Private Law Notes 2  Tort that can be activated when there are damages caused the enjoyment of the goods. ie when you have a house in the countryside, your neighbor having a party with lots of people with a bbq. The bbq causes a lot of smoke and it comes to your side and harms your cherry trees. You have damages to your goods. Tort of Disturbance: Where the damage is caused to the person. In this category, the boundary between civil and criminal law is weak. Because, when there is a damage caused to a person; maybe resulted an offence. Tort of Libel: Can also be a criminal offence. Writ of Trespass: The general kind of tort that is connected to a tort. In particular there 3 kind of trespass depending on the damages cause to: 1. Persons: Can be connected to a criminal offence 2. Goods 3. Land writ of persons: robbery, beating writ of goods: theft- need of use physical force and intentional injury writ in consimili casu: for similar but not identical cases. Originally the essential element of the writ of trespass was the damage caused with the use of strength, with a violent attack. Its necessary in order to obtain trespass by the chancellor. Any kind of damage caused for some reason that was not linked to a violent action, could not be protected with the writ of trespass. What was the legal reasoning of this writ? The damages that caused by citizens that has particular role in the life of damaged ie damage caused by a doctor or lawyer. There was a relationship of trust between person who suffered from damages and the one that caused damages. Even though, the doctor or lawyer did not cause the damage Comparative Private Law Notes 3  intentionally or via violent action, anyhow some kind of tort could be recognized. There was the idea of negligence in this kind of reasoning. However, the negligent action could be activate the compensation only if the action was taken by someone had a particular relationship that the person who suffered (due to the trust relationship) In order to have a general idea about the tort of negligence, we have to wait for the following centuries in order to see a general writ of trespass upon the case. In the writ of trespass upon the case we always had: damages that can be caused person who….. however in that case there was no intention to cause damages or violent action in the proceeding. Whenever there was a negligent action caused neither by a trusted person nor person who had intention to cause damage or used violent action then could be writ of trespass upon the case. ie. keeper- when you go to a hotel, you leave your goods to a keeper and expect the keeper to keep them safe. If one of your belongings is stolen, you can activate a writ of trespass upon the case. There is no violate action but negligent action. Writ of trespass upon the case is illicit invasion of the legal sphere of a person. This creates the duty of care that originally was only foreseeable for certain professions: legal and medical professions. Originally, the writ of trespass created early in the 12th century to sanction specific crimes or pay compensation for the specific cases such as robbery, theft There is a strict relationship between tort and criminal law: Theft is a criminal offence but also arrives the compensation for damages. But the idea of compensation for damages is originated by tort. Writ of trespass is a need of use of this force direct and intentional injury of persons, goods or land. ***The evaluation of writ of trespass upon the case ——- applicable for all cases in which the offence is not a consequence of a violent act but a negligent action. *** This need of evolving the writ apply to the similar cases but not exactly identical came up after 1258 is was not longer possible to create new writs. Therefore, courts and the chancellor was supposed to use the only existing writs. However, sometimes there was no exactly coherent existed writ. That’s why they needed to apply writs for similar situations. Evaluation Process: Comparative Private Law Notes 4  Very strict writ of Writ of trespass upon Tort of negligence trespass: Only specific the case: For the cases possibility to protect the duty of care The most general tort today that more cases can followed within protection is tort of negligence. Because: Burden of proof is easier for the plaintiff. In case of tort of negligence, it is not the plaintiff but the defendant that has to give evidence to the action caused damage. Through the indication of Donoghue v Stevenson case, some elements must be present in order to being able to activate the tort of negligence: general duty of care: Originally the duty of care asked only for certain kind of professions (doctors, lawyers, etc.-because of trust relationship) Also a particular duty of care expected from the citizens who acting in the public functions. Originally, out of these two groups, there was no forcibility of a duty of care. In order to generalize the duty of care ( we live in a society where other people lives. Therefore, duty of care has been generalized) we need to wait until 1932 Donoghue v Stevenson. breach of the duty of care damage non remoteness of damage: We need to able to give evidence that the damage caused by the direct consequence of the defendant’s action. The defendant has to prove that the damage was not caused by his action. Consequences can be different sometimes. For example, if a professional runner had an accident, the damage can be considered bigger compared to a normal person’s situation. DONOGHUE V STEVENSON Mrs. Donoghue could not sue the bartender. Because the person who paid for the beer was Ms. Donoghue’s friend. Therefore, the plaintiff did not have a direct interaction with the bartender. Besides that, the bartender had no possibility to Comparative Private Law Notes 5  check the inside of the beer. The only chance Mrs. Donoghue had was going against the manufacturer. The case was held by the House of Lords (highest court). The decision was not unanimous, majority decision. Lord Hopkin bought a personal decision and he started to discuss the position of the manufacturer. He questioned whether the manufacturer of the good, in specific circumstances, is under any legal duty as ultimate purchaser to take reasonable care? (When the seller and consumer both are not able to check the quality of the product?) Is the manufacturer under the reasonable care, a legal duty to check the defect that can cause injury to health? Lord Hopkin said, a more important problem has occupied the lordship in the judicial capacity. Its important because of public health and practical test and the test is principle test. Its called “proximity test”. Lord Hopkin thought that, there is a general conception of relations given rise to duty of care of which the particular cases following the books are …. instances. Here is the liability for negligence that is based on general public feeling of moral wrongdoing. And the offender must pay. If there is no other ways, then its up to the manufacturer to check. In this case, its up to the manufacturer to check the bottles are stored in a place a snake cant enter or the bottles are closed free of defects. Before these kind of decisions, there was no responsibility of manufacturer even in those cases. Because the idea in the common law was there is no direct relationship between the manufacturer and ultimate consumer. The basis of generalizing the duty of care: Neighbor Principle: In law the neighbor is anyone that can be effected by your action. You have to love your neighbor so you must not injure your neighbor. You must take reasonable care to avoid acts or omissions which you can reasonable foresee would be likely to injure your neighbor.—— Actio reciendio (slayttan kontrol et) In this case, as soon as the consumer buys the ginger beer ; becomes the neighbor of the producer. A manufacturer of products owns a duty of care vis a vis to any consumers of that product. There are some situations in which even though we don’t have a direct contractual relationship between the parties nevertheless then there is a breach of public duty and therefore there is negligence. As mentioned above, tort of negligence was Comparative Private Law Notes 6  foreseeable only in those two cases: in specific professions or public duties. Lord Hopkin opened up this principle to other situations. This principle extended to the manufacturer. Due to its possible negative effect on the economy, this tort of negligence compensation had very strictly applied on the manufacturers. Lord Hopkin quoted (in order to sustain his idea) MacPherson v. Buick Motor Co. case from US. In this case, a wooden wheel; assembled by the Buick company but built by a third party, because of the defect, was detached by the car and hit Mr. Macpherson. He asked for the compensation from Buick, because it was the producer of the car. Because of the defect of the production of the car. Not because of the driver. Even though the plaintiff did not have a direct relationship with Buick company, the judge allowed the damages. That precedent used as a persuading precedent. It established the general tort of negligence. Until this time, you had to choose a kind of tort depending on the damages. After Donoghue v Stevenson, there is a general tort of negligence even though its hard to activate compensation following the rules of tort of negligence. LAW OF TORTS IN CIVIL LAW In continental Europe we have two approaches: French and German 1. French System French approach starts from a very general principle: Nenimem Laedere- coming from giusnaturalism, grozio. Starting point of the French system leads to a general rule: All damages (contractual or non-contractual) should be compensated. the outcome of this principle is: responsabilite delictuelle Any action of a man, which causes to another man a damage, obliges the one by whose fault it has arrived, to repair it. This rule cannot be a rule in common law system. We have a general rule, then we apply it to the cases. However in common law, we have a problem and later we try to find a solution. What are the conditions of responsibility? Comparative Private Law Notes 7  Event Damage (personal, direct and sure) Wrongful act-Fault (abuse of a right or negligence, does not matter. Something must be done in a wrong way. Either breaching a rule or violating the diligence principle) Causality link (Even though foreseen probability test can be considered) Everyone is responsible for the damage he or she caused not only with his wrongdoing, but also his negligence or imprudence : Theorization of Tort of Negligence French model is an atypical model: There is no strict list of rights, violations. The right to compensation derives from a general principle. However, German and English systems have typical principle. Comparative Private Law Notes 8