Tort Research Articles

Pravne dileme u vezi s načinima zaključenja ugovora o osiguranju na daljinu - putem mobilne aplikacije i internet prezentacije

In this paper, the author states that there are two dilemmas in practice regarding the conclusion of distance insurance contracts via mobile applications and websites as a remote communication means. The first dilemma refers to the use of a double authentication as a method of concluding distance insurance contracts, while the second one concerns the permissibility of using the insurance premium payment as a method of concluding distance contracts. The author deals with both dilemmas with a functional and systemic interpretation of the provisions of the Law on the Protection of Financial Service Users in Distance Contracts and the Law of Contracts and Torts. The author concludes that a deviation from the written form of a contract is permitted, in the sense that a policyholder's double authentication is sufficient for the conclusion of a contract, and that a qualified electronic signature of the other contracting party is not required when the contract is concluded via a mobile application and a website of an insurer or a distributor. In addition, the author concludes that the insurance premium payment is an adequate method of concluding a distance contract. Finally, the author tries to provide criteria for establishing the relation between concluding a distance contract via a double authentication and the premium payment, noting that these two methods are not mutually exclusive, but complement each other.

The Law Applicable to Obligations Arising Out of Torts in Romanian and Ukrainian Private International Law

The Law Applicable to Obligations Arising Out of Torts in Romanian and Ukrainian Private International Law

Concept of Usurpation(Ghasab) and its Remedies in Islamic Law of Torts and its Remedies 

Concept of Usurpation(Ghasab) and its Remedies in Islamic Law of Torts and its Remedies 

Regulating Greenhouse Gas Emissions Under the Endangered Species Act

Despite the devastating impact climate change will have on biodiversity, most legal scholars and policymakers are skeptical that the flagship statute for protecting biodiversity in the United States, the Endangered Species Act (ESA), should be deployed to regulate greenhouse gas emissions. This skepticism has been driven by the concern that using the ESA to regulate greenhouse gases could lead to administrative issues, legal chaos, and political backlash that might endanger the Act overall. In this article, I draw on three different elements to argue that the ESA could plausibly be used to regulate greenhouse gases. Specifically, I draw on recent scientific developments that help attribute impacts on biodiversity to climate change; on a common tool in environmental regulation, the general permit; and on key elements of tort law that allow for the division of liability among various actors. Together, these elements mark out a pathway by which the ESA can be used to regulate greenhouse gas emissions, and potentially produce significant funds to pay for the protection of at least some species that are threatened by climate change. I propose developing a general permit system under the ESA that would regulate large sources of greenhouse gas emissions. This system would charge a fee per unit of greenhouse gases emitted that would compensate for the proportional harm that each unit of emissions causes to species threatened by climate change. In turn, those funds can be used to facilitate conservation efforts for species that are protected under the ESA and threatened by climate change. I provide a thorough examination of how such a system would be consistent with the ESA and the implementing regulations and agency guidance documents, how it would work in practice for individual species or emitters, and how likely such a program would be to withstand judicial review. The proposal has implications beyond the ESA. It helps identify the ways in which creative regulatory approaches, such as general permits, can facilitate the adaptation of existing environmental laws, like the ESA, to the current-day context of climate change. Given the increasing impacts of climate change and the difficulties of enacting substantial revisions to environmental laws at the federal level, such creativity will be essential for a range of policy areas.

Challenges of Tort Law in Pakistan

Challenges of Tort Law in Pakistan

Destined to Deceive: The Need to Regulate Deepfakes with a Foreseeable Harm Standard

Political campaigns have always attracted significant attention, and politicians have often been the subjects of controversial—even outlandish—discourse. In the last several years, however, the risk of deception has drastically increased due to the rise of “deepfakes.” Now, practically anyone can make audiovisual media that are both highly believable and highly damaging to a candidate. The threat deepfakes pose to our elections has prompted several states and Congress to seek legislative remedies that ensure recourse for victims and hold bad actors liable. These recent attempts at deepfake laws are open to attack from two different loci. First, there is a question as to whether these laws unconstitutionally infringe on deepfake creators’ First Amendment rights. Second, some worry that these laws do not adequately protect against the most harmful deepfakes. This Note proposes a new approach to regulating deepfakes. By delineating a “foreseeable harm” standard, with a totality-of-the-circumstances test rather than a patchwork system of discrete elements, this Note addresses both major concerns. Not only is a foreseeable harm standard effective, workable, and constitutionally sound; it is also grounded in existing tort law. Moreover, a recent Supreme Court decision pertaining to false statements and the First Amendment, United States v. Alvarez, lends support to such a standard. Adopting this standard will combat the looming threat of politically oriented deepfakes while preserving the constitutional right to free speech.

Frameworks for Accountability: How Domestic Tort Law Can Inform the Development of International Law of State Responsibility in Armed Conflicts

Frameworks for Accountability: How Domestic Tort Law Can Inform the Development of International Law of State Responsibility in Armed Conflicts

Macro Effects in Tort Law Based Corporate Climate Change Mitigation Cases

Macro Effects in Tort Law Based Corporate Climate Change Mitigation Cases

Navigating the Paradox of Repair: Indigenous Genocide and Public Education in Minnesota and Manitoba

This paper examines how educational institutions and individual educators in Manitoba, Canada, and Minnesota, United States (US), understand and enact reparation in their respective fields of practice. The basic principle of restorative or reparative justice is that wrongs are set right by giving back to the injured party that which restores equality, dignity, and rights. However, educational reforms reveal a structural challenge in societies reckoning with the legacies of foundational violence perpetrated against Indigenous populations. Coupling an analysis of state / provincial social studies standards with key informant interviews, we try to untangle the paradox that the public education system, including non-formal education offered in state museums or historical societies are now tasked with addressing and repairing an injustice they were- and, to a large degree, continue to be - a part of. Findings show that sometimes dissonant visions of a reparative future and conflicting attempts to seek and promote justice in public history, the curriculum, and pedagogy are negotiated in the educational arena, resulting in complementary forms of specific practices. These constitute a growing stock of knowledge and models of engagement that shed light on how institutions and individual actors navigate the project and paradox of repair.

미성년 자녀의 불법행위에 대한 비양육친의 감독의무

When one of the parents is designated as the person with parental authority and caregiver, it is a question of whether the parent who does not have the duty to supervise the minor children can be recognized as a supervisor for torts of the minor children. Recently, the Supreme Court determined that non-custodial parents are not obligated to supervise torts of minor children unless there are special circumstances. The ruling set the first precedent on the issue of non-custodial parental supervision of minor children. However, the judgment of the lower court ruled that non-custodial parents are obligated to supervise minor children in principle, suggesting the opposite conclusion of the target judgment. There may be sufficient reasons for the differences in opinions between the first and second judgments and the Supreme Court judgments on the same facts. Even with the same facts, the interpretation may vary depending on how to interpret and link the legal principles of responsibility for supervisors under the tort law and the legal principles related to rights and obligations between parents and children under the kinship law. In this paper, we reviewed whether non-custodial parents can also recognize the supervisory duty in relation to the responsibility of supervisors for torts committed by minor children based on the tort law and the kinship law. And based on this review, we considered what interpretation theory would be a harmonious and more reasonable interpretation under civil law to present issues such as the subject judgment. The authors' views in this study are as follows - ① Non-custodial parents are also responsible for torts of the minor children, as non-custodial parents are also responsible for supervisory duties on minor children. ② However, if special circumstances are recognized, such as when a father or mother abandons a child who is an infant or loses contact after adopting him or her at home and abroad, or when decades have passed without interview negotiations or child support payments, non-custodial parents can be exempted from supervisory responsibility if they prove these special circumstances. This interpretation can be expected to increase the protection of victims due to torts and to remind underage children of their responsibilities and obligations as parents of normal growth and character formation. It is frequently reported in the media that civil and criminal problems related to minor children are occurring. Few would deny that there are inherent rights and obligations between parents and children. Based on these rights and obligations, it is believed that parents should bear some kind of infinite responsibility for their underage children to help them grow properly. Therefore, it is thought that this aspect will be fully considered in the interpretation of the law will be effective in preventing and solving social problems and reducing social costs.

THE CONCEPT OF MEDICAL LAW AND ITS PLACE IN THE SYSTEM OF BRANCHES OF LAW

The scientific work is devoted to the legal nature and regulation of medical law as a branch of law. There is little scientific literature and judicial practice on medical disputes in Georgian realities. Therefore, the study aims to intensify discussion in this direction. The problem becomes even more relevant in the context of technological development in the medical field. The purpose of the research is to determine the object of regulation of medical law, the place of medical law in the legal system, and the relationship between medical law and medical ethics. To achieve this goal, it is necessary to answer the following questions: What relations are included in the scope of regulation of medical law? What is its method of regulation? Where is the place of medical law – is it included in civil law, is it part of criminal and administrative law, or does it represent a certain unity of all three areas? From this point of view, the subject and method of regulating medical law should be studied. Also of interest is a brief analysis of documents reflecting the international context in the medical field, especially in the area of protecting the personal autonomy of the patient. Research confirms that medical law is an interdisciplinary field. It includes law and other branches of science, such as bioethics, medicine, and psychology. Thus, there is a close relationship between medical law and medical ethics. It is also possible that a violation of medical ethics entails a violation of the law and corresponding liability. In addition, it appears that medical law includes parts of public (administrative) law, criminal law, contract law and tort law. The role of contract and tort law in effectively protecting the interests of the patient is special.

Current problems of the Administrative-tort law of Ukraine

The article examines certain shortcomings of the current Code of Ukraine on administrative offenses in comparison with the provisions of the new administrative code. The examples show individual shortcomings of the new regulatory regulation. The author of the article also notes that in recent years, Ukraine has implemented the largest regulatory and legal measures to modernize administrative and tort legislation._The unstoppable increase in the number of registered administrative offenses makes us think again about the lagging of the law-making process from the real needs of society. The article singles out some aspects of improving the legislation on administrative offenses and the administrative- delict process, specifying the concept and legal meaning of the norm on administrative responsibility, rethinking some scientific dogmas, leading scientists to the need to clarify the concepts that constitute the essence of legal regulation of relations in the field of administrative responsibility: administrative- delict relations, administrative-delict law, norm of administrative-delict law for further regulation of legal relations in the sphere of administrative liability. On the basis of rethinking the views established in science about administrative responsibility as one of the institutes of administrative law, the author substantiates the conclusion that the norms regulating the issue of this type of legal responsibility form an independent branch of Ukrainian law - administrative tort law. Administrative-delict law carries out material-legal regulation of administrative liability. The opinion of academics is also noted, who note that the Code of Criminal Procedure in its current state is outdated in many respects and requires a radical adjustment on a new conceptual and doctrinal basis. The set of its constituent norms has its own subject, method of legal regulation, separate organization of regulatory material on administrative offenses.
 Modern administrative and tort law is characterized by integration with criminal law, which allows more effective use of their powers in the prevention of offenses.

Notification of the counterparty of unilateral withdrawal from the agreement

The study focuses on the issue of notification of the initiator of unilateral withdrawal from a contract to its counterparty of such withdrawal. In particular, the problematic issues of determining the form and procedure for such notification and establishing the time when an agreement unilaterally withdrawn by one of its parties will be considered amended or terminated are considered. Current civil law does not provide clear answers to these questions. The necessity of differentiating the legislative rules which will determine the procedure for informing the interested party of the unilateral withdrawal from a contract by the other party, and also establish the moment when the legal consequences caused by unilateral withdrawal from a contract come into force, is pointed out. The criteria for such differentiation are the subject matter and type of contractual relationship, as well as the reasons for withdrawal from the contract, i.e. whether it arose due to a breach of contract by the counterparty or is related to other reasons. When the withdrawal is caused by a breach of contract, the injured party generally does not have to notify the offending party in advance of its intention to unilaterally withdraw from the contract. It is acceptable to give notice after the fact, but with the obligatory immediate notification of the offender or within another reasonable time. In the case of withdrawal for other reasons, the initiator of the withdrawal must usually inform its counterparty in advance. In the latter case, the notice of withdrawal has the form of a warning in the proper sense of the word.
 It is noted that, as a general rule, a withdrawal must be made in the same form as the contract that is being withdrawn by one of its parties. In the first case of withdrawal, i.e. when it is caused by an offence, legal consequences may arise with the first acts of defensive action taken by the injured party. There may be situations where legal consequences of this type of waiver arise from the moment the offending party receives the notice. In the second case of withdrawal - "for other reasons" - the legal consequences of the withdrawal will appear not earlier than the moment when the interested party is informed of the unilateral withdrawal from the contract by its counterparty.
 It is proposed to amend the rules on withdrawal from transactions, which should contain the most general provisions on the implementation of informed unilateral withdrawal from a contract.

Aspect Analysis Of The Transfer Of Name Receivables (Cassie) Due To Tort

The practice of transferring receivables through the CASSIE (Certificate of Assignment for Debt Security) mechanism has become an important part of cash flow management and risk management in the business world. However, the potential risks arising from default, namely the debtor's inability to fulfill obligations under the agreement, also pose a serious challenge. In dealing with this risk of default, a normative approach based on legal, norm and regulatory aspects is the key to understanding the CASSIE legal framework and formulating effective mitigation strategies. From a creditor's point of view, transferring receivables aims to obtain liquidity more quickly, but the risk of default on the part of the debtor is a potential problem. The strategy of diversifying the transferred receivables portfolio and implementing credit insurance are relevant alternatives to overcome this risk. On the debtor's side, the transfer of receivables can have a negative impact when payment failure occurs. Therefore, debt restructuring steps, negotiations with creditors and efforts to restore financial conditions are very important. The impact that will occur due to default in the CASSIE context also deserves attention, considering that the impact can spread to various stakeholders in the business ecosystem. In the era of globalization, analysis must also consider aspects of international law and the potential impact of defaults that cross national borders. The breach of contract which was the main trigger for the transfer of debtors by CASSIE resulted in the transfer of the right to collect debts from debtors who failed to pay to the injured party and institutions, policy makers and researchers in the fields of law and finance to overcome risks with a sustainable approac.

TYPES OF DAMAGES UNDER THE CISG

The breach of a contract of sale may cause damage. Naturally, the aggrieved party may claim damages as a result of the breach of the contract of sale. Therefore, the Vienna Convention on International Sale of Goods (CISG, 1980) regulates damages in Articles 74 -78 of the CISG. Article 74 provides foreseeability and full compensation principles as general principles for determining damages resulting from all types of breaches. Articles 75 and 76 regulate damages resulting from the fundamental breach caused by the avoidance of a contract of sale. Article 77 puts the injured party under the obligation to mitigate damage. Article 78 regulates the issue of determining interest rates. Although these provisions seem comprehensive at first glance, they do not cover some important issues. Case law, legal doctrine, and gap-filling rules are very important for the interpretation of these provisions. The purpose of this paper is to draw a line in the interpretation of these provisions on damages for breach of contract. The doctrinal research methodology shall be employed in this paper.

Blockchain-based auditing of legal decisions supported by explainable AI and generative AI tools

Generative AI tools powered by Large Language Models (LLMs) have demonstrated advanced capabilities in understanding and articulating legal facts closer to the level of legal practitioners. However, scholars hold contrasting views on the reliability of the reasoning behind a decision derived from LLMs due to its black-box nature. Law firms are vigilant in recognizing the potential risks of violating confidentiality and inappropriate exposure of sensitive legal data through the prompt sent to Generative AI. This research attempts to find an equilibrium between responsible usage and control of human legal professionals over content produced by Generative AI through regular audits. It investigates the potential of Generative AI in drafting correspondence for pre-litigation decisions derived from an eXplainable AI (XAI) algorithm. This research presents an end-to-end process of designing the architecture and methodology for a blockchain-based auditing system. It detects unauthorized alterations of data repositories containing the decisions by an XAI model and automated textual explanation by Generative AI. The automated auditing by blockchain facilitates responsible usage of AI technologies and reduces discrepancies in tracing the accountability of adversarial decisions. It conceptualizes the two algorithms. First, strategic on-chain (within blockchain) and off-chain (outside blockchain) data storage in compliance with the data protection laws and critical requirements of stakeholders in a legal firm. Second, auditing by comparison of the unique signature as Merkle roots of files stored off-chain with their immutable blockchain counterpart. A case study on liability cases under tort law demonstrates the system implementation results.

Can Civil Courts Save the Climate? Strategic Climate-change Litigation Before Civil Courts

Climate change is an urgent global problem, and national legislatures must enhance their efforts to reduce carbon dioxide emissions drastically. Individuals and NGOs have filed public law actions against national legislators before international courts (prominently the ECHR) and several constitutional courts to allege violations of constitutional and human rights. In a more recent development, civil courts too are being seized with climate‑change litigation. In 2021, a Dutch court ruling on an action by an NGO against the Royal Dutch Shell Group held that Shell is obliged to reduce its CO2 emissions considerably. This judgment, based on the Dutch Civil Code’s general tort regulations, has triggered a wave of similar actions before German courts. Such cases of individual plaintiffs, supported by NGOs, suing private companies for damages or for an immediate reduction of emissions are examples of ‘strategic litigation’ aimed at bringing about broad societal changes beyond the scope of the individual case at hand. The article analyses the political implications, tackles the question of whether general tort law is a suitable instrument to address the climate‑change problem, and discusses how civil courts may handle these cases. Climate change is a complex, multi-stakeholder issue that requires a difficult process of balancing social, legal, and economic interests – which is the task of democratically legitimised parliaments, not primarily a task of courts.

Attribution of Liability for Copyright Infringement by Artificial Intelligence Generated Content

As generative artificial intelligence continues to advance, providing an ever-expanding range of functions and applications for humanity, it has given rise to novel forms of torts, with the potential for more to emerge in the near future. Resolving issues of liability hinges on the identification of the responsible party. However, neither Chinese legislation nor academic views have specified rules or a clear and consistent opinion on the liability attribution issue. This paper aims to address this question. Commencing with the premise that artificial intelligence inherently lacks legal personality, this paper systematically examines all relevant subjects who could potentially bear liability for copyright infringement. The legal foundations for each entitys liability are thoroughly analysed. Meanwhile, this article elucidates the principles of attribution of liability, drawing from established theories of traditional tort law and jurisprudential principles while taking into account the special characteristics of copyright infringement and artificial intelligence. In conclusion, in the absence of a clear consensus on determining the liable party, the principle of correspondence between risks, benefits and responsibilities should guide the attribution of liability for copyright infringement involving generative artificial intelligence. This approach will ensure an equitable distribution of losses, responsible burden-sharing, and comprehensive protection of rights.

Building Global Health Solidarity in a Permacrisis: Legal Impacts of a Pandemic Treaty

Covid-19 has revealed the urgent need for global solidarity in an era of interconnected crises (permacrisis). The World Health Organization (WHO) aims to improve pandemic prevention, preparedness and response through a ‘convention, agreement or another international instrument under the constitution of WHO’ (‘pandemic treaty’). This study analyses shortcomings in global health solidarity during Covid-19, investigates legal impacts of the pandemic treaty and navigates the arguments for and against a pandemic treaty. The treaty’s potential legal implications for human rights, intellectual property law, tort law, global health law, competition law and public procurement are examined, as well as some challenges to its implementation. The treaty’s success depends on overcoming differences and learning from global failure in order to prepare better for the next pandemic. The pandemic treaty must ensure equity, transparency, accountability and human rights while facilitating access to vaccines and other pandemic-related products, especially for low- and middle-income countries.

Tort tales and total justice: Exploring attitudes toward everyday tort claims for workplace injuries

AbstractDespite some retrenchment, the litigation state remains alive and well. All this litigation has engendered intense debates over whether increased lawsuits represent a rising tide of justice or a flood of frivolous claims. Tort law has been at the center of these debates for decades, standing at the fault line between “tort tale,” “total justice,” and “mixed” narratives about the perils and benefits of litigation. In this article, we use a survey experiment to probe attitudes toward claims for workplace injuries in light of these narratives. We find that our participants held multifaceted views. On one hand, they favored making claims over doing nothing or asking family members for help and saw lawsuits as equally appropriate as filing a government claim or hiring a lawyer to send a demand letter. On the other hand, tort tale themes cast a subtle shadow over our participants' views. When told claimants did not rush to the courts in defiance of tort tale expectations, our participants saw the lawsuit as more justified. Indeed, the more remedies exhausted prior to litigation, the more justifiable the lawsuit seemed, even though repeated denials of claims might undermine faith in their merits. The bottom line, we contend, is that attitudes toward litigation reflect not only the choice of remedy but also how remedies are used, even when the underlying claim is meritorious—a point that could be useful to practitioners and advocates as they weigh claiming options as well as litigation and public communication strategies.