Liability For Loss Research Articles

Causation and Contributory Negligence: The Use and Misuse of Causal Concepts in Cases of Misleading Conduct

The nature of liability for loss caused by misleading conduct has changed in recent years. A field previously dominated by tort, the last few decades have seen the emergence of statutory causes of action created by legislative schemes proscribing a variety of forms of misleading conduct. In both tort and in cases of statutory misleading conduct, however, a defendant’s liability is sometimes reduced when the plaintiff has been contributorily negligent. Questions of causation are core to the apportionment of liability in these circumstances, as the defendant’s liability can only be reduced if the plaintiff’s carelessness was a cause of the plaintiff’s loss. As this article will explain, however, despite being the ‘bread-and-butter’ work of common law courts there is confusion over the role of causal concepts when liability is apportioned for loss caused by misleading conduct. This article examines the nature of the enquiry into whether the plaintiff’s carelessness caused the plaintiff’s loss, and argues that the enquiry involves consideration of whether the plaintiff’s carelessness contributed in any way to the plaintiff’s loss. The enquiry should not be viewed as involving either the ‘but for’ or ‘common sense’ tests of causation. Furthermore, it is argued that this enquiry is analytically distinct from either (1) the enquiry into whether the plaintiff’s loss was within the ‘scope of the risk’ created by the plaintiff’s carelessness, or (2) the enquiry into how liability should be apportioned between plaintiff and defendant if the plaintiff’s carelessness contributed to the plaintiff’s loss. These latter enquiries are enquiries going to the defendant’s scope of liability. They are not enquiries concerned with causation. In particular, the enquiry into the appropriate reduction in the plaintiff’s recovery does not involve questions of ‘causal potency’. This concept, though apparently embedded within the doctrine of contributory negligence, is unsatisfactory in theory and practice.

Property Torts and the Restatements

Essay examining connections between tort law and property, and the Restatements' treatment of tort liability for loss of, damage to or interference with property interests.

THE PLACE OF ECONOMIC FREEDOM IN THE ECONOMIC POLICY OF THE COUNTRY

A market economy is based on economic freedom, which is revealed in freedom of choice. Choice is the main precondition for competition, and competition is the main driving force of economic development. Economic freedom contributes to the development of the economy of country and the well-being of the population the country depends on it. The International Heritage Foundation has been conducting annual surveys since 1995 on the fulfillment of these conditions in 180 countries around the world, including Georgia. The index of economic freedom in Georgia changes every year. A country is considered economically free if it does not restrict individual choice, voluntary exchange, freedom of competition. A necessary condition is the protection of private property. In an economically free society, every person has the full right, at his own discretion and in the conditions of free choice, to achieve his own goals, the state does not interfere in its activities and choices. It should be noted that economic freedom does not mean economic independence. At the present stage of society's development, the economic activities of any economic entity are so intertwined, so dynamic and in-depth, that the notion of economic independence sounds more an anachronistic than a 21st-century achievement.This applies to relations between countries, as well as relations between individuals and legal entities. Economic freedom means, above all, freedom of choice. Index of Economic Freedom (Economic Freedom of the World) is a measure of economic freedom compiled by the Heritage Foundation, a leading center for American policy research and ,,The Wall Street Journal“ . This index has been established since 1995.The world rating of "economic freedom" has a great importance in terms of further attracting investment in the country. The Index of Economic Freedom is based on ten criteria. These are: freedom of business, freedom of trade, fiscal freedom, government costs, monetary freedom, freedom of investment, financial freedom, property rights, freedom from corruption, freedom of labor. The information on the results of survey of the Heritage Foundation "Economic Freedom Index" 2020 is posted on the official website of the Ministry of Economy and Sustainable Development of Georgia, according to the survey 2020 of the "Heritage Foundation" Index of Economic Freedom " rating score of Georgia reached a historical maximum - 77.1 points, it was promoted by 4 positions in the world ranking and took the 12th position. Compared to the previous year, Georgia was promoted by 2 positions in the European region - with this result Georgia is in the 6th place among 45 countries in the European region with the status of "mostly free". Total score ofGeorgia exceeds both the regional (69.8 points) and the world average point (61.6 points). In our view, property rights are crucial in this large system of valuation. In terms of private ownership, the benefit or loss is the property of the owner, which gives him an incentive to use the resource efficiently. When a resource is transferred to collective ownership, the responsibilities are dispelled, and the different motives of the owners ultimately make the preservation and reasonable use of that resource less possible. An even worse result is achieved if the asset becomes state-owned, because then the liability for profit and loss is not dispersed but divided among different groups.There are known cases in the Czech Republic, Poland and Hungary, where after the end of socialism, the profitability of privately owned companies increased by an average of 77% in just a few years. There are many such stories in the former socialist countries, although privatization is a permanent process in developed countries as well, and the value of privately owned assets around the world has, in fact, been rising every year since the 1980s.

The state of Ukraine as a subject of civil liability for losses caused to entrepreneurs during the Ukrainian Anti-Terrorist Operation/Joint Forces Operation (analysis of current legislation and practice)

In order to repel external aggression and stabilize the economic and socio-political situation in the country in 2014, the legal regime of the anti-terrorist operation (ATO) was enacted. Subsequently, the Anti-Terrorist Operation in Eastern Ukraine in April 2018 was renamed the Expanded Anti-Terrorist Operation within the Joint Forces (JFO) Operation. The issue of the responsibility of Ukraine for the damage caused to businesses by public authorities or their officials during the ATO/JFO has become relevant. Today in this above mentioned area there are serious deficiencies of the regulatory and legal support, as well as practical implementation, which complicates the mechanisms of compensation to entrepreneurs affected by the ATO/JFO. The paper shows the results of research on the compensation for damage caused to entrepreneurs by the state of Ukraine during the hostilities and/or other measures related to the law enforcement, as well as the defense of subjective civil rights of the participants in civil relations. The provisions of articles 1166 and 1167 of the Civil Code of Ukraine are analyzed in determination of grounds for liability and other provisions of paragraph 1, chapter 82 of the Civil Code of Ukraine depending on the circumstances under which the damage was caused. The civil liability of military servants during the service and combat missions is discussed and considered. It is proved that the structural subdivision of the Military Forces of Ukraine is responsible for causing damages during the service and combat missions. The particular attention is paid to the consideration of the practice of application of the current legislation of Ukraine in the area of compensation for damage caused by Ukraine to entrepreneurs. As a result of the study, the following conclusions were made. Under present conditions, the responsibility of Ukraine for damage caused to entrepreneurs by the delict of public authorities or their officials remains clearly unresolved at the regulatory level. The need to supplement the articles 1173 and 1174 of the Civil Code of Ukraine by the provision that clearly defines that the damage is reimbursed by the state of Ukraine is claimed. Key words: rights, guarantee, legal liability, institute of responsibility, reparation, state.

Fake Vaccine in Children and The Protection

The development of vaccines in Indonesia is not only for adults but also for children. However, some of the vaccines for children in circulation are fake vaccines that do not provide the expected immune system. This study contains 2 problem formulations, namely: 1. Role of government. 2. Business actors' liability for losses suffered by consumers. This study used a statute approach and a conceptual approach. There are also other laws that regulate consumer protection laws regarding rights and obligations that are violated, the role of government in controlling these fake vaccines and its accountability.The result of this research is the role of government in deciding the distribution of fake vaccines in Indonesia as well as to fulfill consumer rights and business actors' responsibility for the distribution of fake vaccines and their compensation.

The Liability of the Custodian If the Victim is Proven to Have Contributed to the Damage

Aims: This study aims to address the custodian liability for losses caused by an object under his control, especially for the damages occurred by mechanical machines, and showing the effect of split liability on the custodian’s liability especially in cases of paying compensation to the victim. On the other hand, this study discusses the custodian liability under the Jordanian law and some of the Arab laws.
 
 Materials and methods: Following identification of the study objectives, the researcher compared the legal frames in Jordan and other surrounding countries. The researcher was able to formulate the present study. 
 
 Study findings: The legal text in Article (261) of the Jordanian Civil Code exempts the custodian in its main text from paying compensation under some conditions such as natural disaster, unavoidable accident, force majeure, an act of a third party, or act of the person suffering loss, while at the same time the Article ended with the phrase “unless otherwise stipulated by law or agreement.” Which I think is unnecessary here and shall be omitted. The Jordanian legislation also neglected to clarify the types of fault that may be caused by the victim especially, if it is proved that the victim has contributed to causing the damage, the fault of the custodian, in this case, can be rebutted.
 
 Conclusion: The Jordanian legislator did not comprehensively specify the types of the victim’s fault, while the Lebanese legislator has clarified those types. Explicitly, there is no need for the part of Article (261) of the Jordanian Civil Law which says that "otherwise or agreement" because the text is clear and fulfills its intended purpose.

Monetary compensation for non-material damage now and then in the perspective of French and Polish legal systems

The last decades have witnessed – in civil law jurisdictions – a growing concern about instruments of legal protection of non-material interests, in particular: redressing non-material losses sustained as a result of tortious acts. Legislation and case-law alike try to address this complex problem. The aim of this paper is to present, in a comparative context, the historical development of admissibility of monetary compensation claims for non-material damage in French civil law (the Napoleonic Code) and jurisdictions that have adopted French law or structured their civil law legislation around French paradigms as well as in Polish law. Though the contemporary private law of Poland is far more related to the laws of Germany and Austria, French civil law, which was in force in the territory of Congress Poland for over a century, was and still is an important benchmark for ever-valid comparative analysis. The very broad and liberal way in which contemporary Polish law approaches the issue of compensation for non-property harm seems to be one of the issues where French inspirations played an important role. The authors employ legal comparative and historical methods, supplanted by formal-dogmatic ones, to present the evolution of tort law concerning monetary liability for non-material loss.

Adverse selection, limited compensation, and the design of environmental liability insurance contract in the case of enterprise bankruptcy

In the case of incomplete environmental liability insurance, enterprises are likely to go bankrupt. Rational enterprises generally do not want to insure the environmental loss liability in case of bankruptcy even if they are compensated by insurance companies. This means that the premium calculated now is high, which may be the main reason for the current enterprises to cherish insurance. Based on this, a basic model of environmental liability insurance contract considering bankruptcy under ex ante asymmetric information is established. The model is improved by using the information screening combination tool, which further improves the efficiency of information screening.

Product safety, contracts, and liability

AbstractA firm sells a dangerous product to heterogeneous consumers. Higher consumer types suffer accidents more often but may enjoy higher gross benefits. The firm invests resources to reduce the frequency of accidents. When the consumer's net benefit function (gross benefits minus expected harms) is decreasing in consumer type, the firm contractually accepts liability for accident losses and invests efficiently. When the consumer's net benefit function is increasing in consumer type, the firm contractually disclaims liability and underinvests. Legal interventions, including products liability and limits on contractual waivers and disclaimers, are necessary to raise the level of product safety.

The Effect of Distracted Driving Laws on Automobile Liability Insurance Claims

We examine whether laws designed to reduce distracted driving have consequences for the automobile liability insurance market. Our research is motivated by prior studies that suggest distracted driving laws lead to improvements in traffic safety. Following these studies, we propose that distracted driving laws should also lead to reductions in the frequency and cost of injury liability insurance claims. Consistent with this expectation, we provide evidence that cellphone bans lead to approximately 3,400 fewer injury liability insurance claims, on average, in any given state enacting a ban. Our analysis also suggests that cellphone bans lead to reductions in injury liability loss costs, and we estimate the total statewide savings to the insurance industry, on average, is approximately $32 million per year in any given state enacting a ban. Additional analysis that further considers other types of distracted driving laws confirms that laws designed to limit distracted driving lead to substantial reductions in the frequency and cost of injury liability insurance claims. Finally, we also present analysis that suggests the reduction in claims frequency and injury liability loss costs attributable to distracted driving laws leads to statewide automobile liability insurance premium savings of approximately 4.7%.

ABOUT GAPS IN MORTGAGE LEGAL RELATIONS IN IMPLEMENTATION OF MORTGAGE SUBJECT

The purpose of this article is to identify loopholes in the mortgage law of Ukraine, in particular if the creditor has not properly exercised his or her right to a final court decision to satisfy his / her claims at the expense of the mortgage subject, resulting in violations of subjective rights of the mortgagee. It is noted that in practice, when applying the Law of Ukraine "On Mortgage" of 05.06.2003 № 898-IV outside the sphere of legal regulation of this law there is a question of legal consequences in case the creditor did not use within a certain time his right on the basis of a court decision on satisfaction his claims on the subject of the mortgage, including termination of the mortgage on these grounds. It is noted that the issue is unsettled: whether the debtor has the right to demand termination of the mortgage agreement, if the lender has chosen a way to satisfy his claims precisely by applying the foreclosure for the mortgage through his public auction, which was decided by the court, does not take any action on enforcement of this judgment. It is emphasized that the issue of the possibility of termination of a mortgage obligation as a result of abuse by the creditor of the right to enforce the obligation is important, in particular when the value of the property transferred to the mortgage exceeds considerably the amount of credit debt of the debtor and the mortgagee (the owner of the property) with encumbered property, unable to dispose of it, waiting for a long time to properly execute the court decision. The authors believe that, because of the improper execution of the court decision and the terms of the mortgage agreement, the mortgagee should also bear the burden of liability and certain losses in this case as well. Therefore, to protect the subjective rights of both the mortgagee and the mortgagee, the authors propose to overcome the gap in the Law of Ukraine "On Mortgage" by amending Art. 17. after the second part of the new part reads as follows: "if the mortgagee has not taken any measures to realize the subject of the mortgage for the execution of the judgment". That is, through the introduction of appropriate amendments to the legislation provides legal certainty in the mortgage relationship.

A Study on the Allocation of Liability and Burden of Proof between Carrier and Cargo Interests under Maritime Liability Regimes

운송물의 멸실, 훼손 또는 연착의 경우, 화주는 운송인에 대하여 화물 클레임을 제기할 수 있다. 이러한 화물 클레임을 진행함에 있어 운송인과 화주간의 책임여부 및 책임분배 문제와 함께 입증책임 문제도 중요하다고 할 것이다. 일반적으로 운송 계약 조건 상 운송인과 화주의 의무와 책임은 종종 법적 입증책임의 부담을 누가 지느냐에 따라 달라질 수 있다. 이에 여러 화물 관련 책임제도의 핵심 요소인 책임 분배와 입증책임과 관련된 조항을 분석하는 것이 매우 중요하게 된다. 해상운송에서 헤이그-비스비 규칙 등의 화물 책임제도에 따라 운송인은 여러 가지 의무를 지며, 이를 위반하면 그에 따른 책임이 발생한다. 대표적인 운 송인의 의무에는 선박의 감항성을 갖추고 유지하기 위한 감항능력 주의의무와 함께 운송인의 책임기간 동안 수하인에게 화물을 운송하고 인도하기 위한 운송물에 관한 주의의가 포함된다. 여기서 헤이그/헤이그-비스비 규칙과 달리 로테 르담 규칙에 따른 감항능력 주의의무는 운송 전반에 걸쳐 적용되는 지속적인 의무이다. 운송인이 항해 이전 및 항해 기간 동안 지속적인 주의의무를 가지는 점과 항해과실면책이 제외되는 점 등 여러 가지 변화로 인해 전반적으로 위험 의 균형이 화주에서 운송인으로 전환되는 효과가 있을 것으로 보인다. 그러나 이러한 변화는 ISM 코드 및 안전한 해운의 요구사항에 부합한다는 이유로 어느 정도 정당성을 확보하게 되었다. 또한 화주의 의무와 책임이 더욱 확대된 점도 책임분배와 관련한 새로운 변화이다. 한편, 입증책임에 관한 로테르담 규칙의 조항은 보다 면밀하고 기술적으로 구성되었다. 로테르담 규칙에 따른 접근 방식은 헤이그/헤이그-비스비 규칙과 유사하게 보이지만 그 문구 및 구조는 많이 다르다는 것을 알 수 있다. 일반적으로 화주가 운송인의 책임기간 동안 손실, 훼손 또는 지연을 입증해야 하지만, 운송인이 과실이 없음을 입증하거나 또는 면책을 인용할 수 있는 경우 운송인은 책임의 전부 또는 일부를 면제 또는 경감 받게 된다. 특히 운송인의 비례 책임의 원칙을 도입한 점은 손해에 대한 책임의 분배와 관련하여 로테르담 규칙을 기존의 책임제도와 구별할 수 있는 부분이다. 따라서 로테르담 규칙 상 책임분배 및 입증책임은 운송인이 책임의 일부를 완화할 수 있기 때문에 헤이그/ 헤이그-비스비 및 함부르크 규칙의 입장과 크게 다르다고 할 수 있다.

State Regulation on Business Entities Owned by State Universities: Losses and Liability

The Act of Higher Education stated that Higher Education Management Autonomy is carried out by the basis and objectives and abilities of tertiary institutions. This causes not all State Universities to have the same status, one of which is Legal Entity State University. Legal Entity State University is a state university established by the government which is an autonomous public legal entity. Implementing regulations related to Legal Entity State University is Government Regulation Number 26 in 2015 on the Form and Mechanism of Legal Entity State University Funding. The Government Regulation indicates that Legal Entity State University can have a business entity. The problem is, if the Legal Entity State University carries out a business activity, there will be a possibility that the business will suffer losses. If there is a loss, how is the liability for the loss of the Legal Entity State University? Based on the business judgment rule doctrine, not every business loss is classified as a state loss. If the financial loss is not caused by intentional acts against the law or abuse of authority, then that matter is not classified as a state loss. If the losses included state losses, then the liability losses caused by the activities of those business entities owned by state universities are carried out in three ways, there are criminal liability, civil liability, and accountability in the state administrative law.

Assessment of Effectiveness My Kampung My Future Program Based on CIPP Model: Process Dimension

The purpose of this study is to evaluate the effectiveness of the My Kampung My Future (MKMF) program based on the process dimensions in the CIPP assessment model. The CIPP assessment model was selected as it emphasized the continuous improvement process of a program that has yet to or has been conducted. Thus, the process dimensions in this study focused more on the implementation strategy in the MKMF program. Questionnaires were distributed to 212 MKMF participants and then the data were analysed using SPSS software. The findings showed that the total mean value was at high level. However, there were two moderate constructs in terms of problem solving and loss liability. It was clearly shown that the assessment process is crucial in the pursuit of continuous improvement to ensure the sustainability of the program in the future.

Implementation of the Doctrine of the Business Judgment Rule on Bankruptcy Law in Indonesia

One of the mechanisms that can be taken in resolving accounts payable to a limited liability company in bankruptcy. In the case of bankruptcy due to mistakes made personally by the Board of Directors and the Board of Commissioners, they must be responsible for debts held by limited liability companies. The company law regulates the way for the Board of Directors and Board of Commissioners to avoid liability for losses suffered by the company, through the doctrine of the Business Judgment Rule (BJR). In practice, the application of the BJR doctrine in bankruptcy law is characterized by differences in interpretation between law enforcers. Differences in interpretation occur because there is no clear provision in the Republic of Indonesia Law Number 37 of 2004 concerning Bankruptcy and Delay of Obligations to Pay Debt (Law No. 37/2004) which limits the filing of bankruptcy applications to the personal Directors and Board of Commissioners. The research in this article is carried out by reform-oriented research methods, to make changes to Law No. 37/2004 to clarify the application of the BJR doctrine in bankruptcy law in Indonesia. With the implementation of legal reform, it is expected that there will be no difference in interpretation regarding the application of the BJR doctrine to bankruptcy law at the Commercial Court in Indonesia.

DOPUSZCZALNOŚĆ UMOWNEGO KSZTAŁTOWANIA UZUPEŁNIAJĄCEJ ODPOWIEDZIALNOŚCI PRACODAWCY ZA WYPADEK PRZY PRACY

Przedmiotem artykułu są rozważania na temat możliwości zawierania między pracodawcą a pracownikiem umów łagodzących tzw. uzupełniającą odpowiedzialność pracodawcy z tytułu wypadku przy pracy. Szczególna uwaga poświęcona została odpowiedzialności za szkodę na osobie i szkodę niemajątkową. Autor rozważa możliwość łagodzenia odpowiedzialności zarówno w reżimie kontraktowym jak i deliktowym odnotowując obecne w doktrynie prawa cywilnego poglądy odnośnie do dopuszczalności tego rodzaju modyfikacji

Economically robust protection against 21st century sea-level rise

Abstract While sea-level rise could flood and displace hundreds of millions of people, a range of studies have shown that adaptation in the form of coastal protection can be very effective and cost-efficient in reducing coastal impacts. All of these studies have, however, investigated adaptation decisions within one given sea-level rise and one given socio-economic scenario, which is at odds with the actual decision problem coastal planers are facing in that they need to decide across scenarios. This study takes first steps at filling this gap by assessing for which parts of the global coastline coastal protection is economically robust across 21st century global mean sea-level rise from 0.3 m to 2.0 m, the five Shared Socio-economic Pathways and discount rates from 0 to 6%. We find that for 92,500 km of the global coastline it is economically robust to invest in protection (i.e. protection is cheaper than not protecting under every scenario considered). While these 92,500 km cover only 13% of the global coastline, they account for 90% of global coastal floodplain population and for 96% of assets in the global coastal floodplain. For 451,000 km of the global coastline (65%) covering 0.2% of coastal floodplain population and 0.2% of coastal floodplain assets globally, it is economically robust not to invest in protection. Our results suggest bifurcating coastal futures. On the one hand, richer, densely populated and urban areas are likely to be protected through higher and higher dikes. On the other hand, poorer rural areas will struggle to maintain safe human settlements and are likely to eventual retreat from the coast, raising difficult policy questions concerning transfer payments, compensation and liability for loss and damage.

Law's Semantic Self-Portrait: Discerning Doctrine with Co-Citation Networks and Keywords

An apex court’s body of cases has an internal texture, continually augmented by recent citations to earlier, topically related cases. How can we best describe that texture? The citation network shows a path. Specifically, what past Supreme Court cases do more recent Supreme Court cases tend to cite together, as if a topical pair? Using a web of those oft-cited pairs, what noun phrases appear in a given cluster of cases more often, relative to the rate at which those phrases appear in writings more generally? To answer these questions is to map, in detail, a body of decisional law. Using common network-analysis and corpus-linguistics tools, one can derive from a group of cases the key empirical facets of the legal doctrine embodied in that cluster of cases — a semantic self-portrait that the cases paint with their own words and citations. This paper provides a pair of case studies for revealing the latent semantic building blocks of legal doctrine. First, using a new citation dataset, I analyze the co-citation network of a sharply defined group of Supreme Court cases (in this instance, cases on the Warsaw Convention, a treaty that limits liability for loss or injury in international air travel, and other cases related thereto). Second, building on a citation dataset from prior work, I analyze the co-citation network of all the Supreme Court’s intellectual property cases from 1947 to 2018, inclusive. With these empirical studies, I show that co-citation analysis complements both traditional legal analysis — by establishing data about legal doctrine, from the bottom up, using large case networks — and the attitudinal-model studies from political science — by focusing on the substance of legal doctrine, rather than on judges’ votes in split cases placed on a right-left continuum.

PERTANGGUNGJAWABAN KERUGIAN NEGARA DALAM PENGELOLAAN KEUANGAN DAERAH

Sources of revenue and expenditure of APBD (regional budget) can be allocated to finance the compulsory affairs and optional affairs in the form of programs and activities related to the improvement of public services, job creation, poverty alleviation, improvement of environmental quality, and regional economic growth. The implications of these policies is the need for funds to finance the implementation of the functions, that have become regional authority, is also increasing. In practice, regional financial management still poses a complicated issue because the regional head are reluctant to release pro-people regional budget policy, even implication of regional autonomy is likely to give birth to little kings in region causing losses to state finance and most end up in legal proceedings. This paper discusses the loss of state finance and forms of liability for losses to the state finance. The result of the study can be concluded firstly, there are still many differences in giving meaning and definition of the loss of state finace and no standard definition of state losses, can cause difficulties. The difficulty there is in an effort to determine the amount of the state finance losses. The calculation of state/regions losses that occur today is simply assessing the suitability of the size of the budget and expenditure without considering profits earned by the community and the impact of the use of budget to the community. Secondly, the liability for losses to the state finance is the fulfillment of the consequences for a person to give or to do something in the regional financial management by giving birth to three forms of liability, namely the Criminal liability, Civil liability, and Administrative liability.Keywords: state finance losses, liability, regional finance.

Liability for Data Loss

Liability for Data Loss