Tort Research Articles

Instrumental Tort Law: Moral Technology or the Promise of a More Advanced Normative Underpinning?

Abstract In recent decades, tort law, and the theory on which it is based, have been the subject of intense debate. These debates focus on the underlying rationale of tort law and reflect tensions between instrumental and non-instrumental perspectives. Instrumental perspectives cover a wide variety of approaches in which tort law is seen as a tool to realise social aims. It can be recognised in the theories of legal economists, such as Posner, who emphasise deterrence, but also in the theories of those who consider it to be an instrument to realise compensation or to contribute to distributive justice. The non-instrumental perspective reflects the concerns of those who consider tort law to be based on individual autonomy and liberty. Some advocates of this perspective adopt a straightforward anti-instrumental position. Weinrib and Beever for instance, object to tort law being used as an instrument to realise collective aims. An instrumental approach would make individuals – either the injurers or the victims – the servants of collective aims, whereas tort law should instead protect individual freedom in the face of community needs.These non-instrumental theories and their individualistic interpretation of liability are unrealistic in a society where people are embedded in wide networks of interdependency, in which risks are often anticipated and deliberately accepted as socially desirable, and in which insurance and its accompanying rationale of actuarial justice play a prominent role.Nevertheless, the issue I seek to address in this paper is whether the principle of corrective justice might not embody some important values that can be used to counter some problematic aspects of an instrumental approach. Based on an awareness that the concept of corrective justice as a whole is no longer realistic in today’s society and building on Habermas’ theory of communicative action, I will sketch the contours of an alternative underpinning for tort law that better reflects current social realities, while at the same time taking some normative reservations held by advocates of corrective justice against instrumentalism into account.

Climate Change, Compensation and Unpredictable or Uninsurable Loss: A Possible Path Forward Using Compensation Funds

Abstract Climate change has created existential challenges for current models of natural hazard insurance, and it may be difficult going forward for these models to consistently, fairly and coherently manage the compensation challenges associated with climate change impacts in Europe. This paper analyses the application of a comprehensive no-fault compensation fund framework to the problem of presently uninsured and technically uninsurable losses that are currently inadequately covered by other compensation mechanisms, and for which compensation may be difficult to recover using tort law mechanisms. The proposed structure includes consideration of the purpose and form of the fund, eligibility and categories of loss covered, quantum of compensation, and funding sources. There is also a preliminary consideration of the impact of such a fund on questions of liability. The proposed model illustrates potential ways for a compensation fund to support and complement existing compensation structures such as insurance and civil liability, and provide the necessary stabilisation in European society. Further legal research in this area will require qualitative and quantitative empirical data on how existing compensation frameworks (including innovative insurance instruments like parametric insurance) have so far positively and negatively impacted the ability of victims of climate change to prepare for and recover from loss incidents, in comparison with tort law and existing insurance.

Sale and Purchase Binding Agreement As A Legal Protection On The Sale and Purchase of Mortgaged Land

The concept of sale and purchase of land in Indonesian positive law requires it to be made in a Sale and Purchase Deed by a Land Deed Official by first fulfilling the conditions that have been determined. However, in practice, the making of a Sale and Purchase Deed cannot always be done immediately due to requirements that have not been fulfilled by one or even all parties to the agreement. To overcome this condition, the parties can first bind the agreement by making a Sale and Purchase Binding Agreement (PPJB). The objective of the paper is to analyze the position of PPJB as legal protection on the sale and purchase of mortgaged land and to analyze the role of Notary in making PPJB of mortgaged land. In conclusion, as a reciprocal agreement, the PPJB is considered to always have a void condition. If one party does not carry out its obligations, the injured party can demand the implementation of obligations or cancel the agreement, accompanied by compensation for losses, costs and interest. The role of Notary in making PPJB of mortgaged land is to ensure the authenticity of PPJB so that it can be used as perfect evidence and to arrange the clauses in the agreement carefully and accommodate legal protection for the parties in PPJB.

METAVERSE: MODEL CRIMINAL CODE

The Scientific and Technical Revolution 5.0 and WEB 3.0 technologies create conditions for the renovation of various forms of social relations with the use of virtual and augmented reality technologies in the metaverse. According to the proposed theory, the legal regulation of social relations in the metaverse requires the development of a comprehensive electronic jurisdiction based on the latest basic legislation. The formation of legal regulation of the metaverse is a prerequisite for the need to form an electronic jurisdiction of the metaverse, which will include sectoral Metaverse Codes. The metaverse, as the electronic society of the future, does not yet have clear legal boundaries, and the task of scholars is to predict and outline with sufficient certainty the future contours of legal authority for virtual environments. Today, discussions in the scientific community about the feasibility and necessity of legal regulation of the metaverse often revolve around several key issues. First, there is the question of what legal framework should be applied in the metaverse and how conflicts between different legal systems should be resolved. Second, there is a debate about whether current regulatory bodies in the physical world have the capacity to effectively regulate the metaverse through existing laws and regulations. Third, there is the question of how to deal with offences committed in the virtual environment, and whether they should be dealt with under existing tort or criminal law, or whether a separate cross-border electronic jurisdiction should be created. The regulation of social relations in the metaverse should focus on one central goal: to clearly define the status of electronic entities, subjects and objects, to establish their rights, duties and responsibilities, and to define the different types of relations between virtual entities, subjects and objects within a given metaverse, as well as between different metaverses within an electronic jurisdiction and in a cross-border context. An essential component of the Metaverse Electronic Jurisdiction is a Metaverse Model Criminal Code that will outline the norms and offences applicable to analogue, hybrid and electronic jurisdictions. This code will define the types of socially harmful acts or crimes and the corresponding criminal penalties that will be applied within the metaverse. The formation of the electronic jurisdiction of the metaverse and the development of a Metaverse Model Criminal Code is a current scientific and legal issue.

Analysis of the legal aspects of civil and criminal liability in contracts

Liability is considered one of the most important topics addressed by legal specialists, and it is one of the old and renewed topics as long as the contract exists and the obligation exists.
 In general, civil liability refers to the legal responsibility for one's actions that result in harm to another person or entity. It is a legal obligation wherein the defendant must compensate the damages or follow the court's order with regard to the civil lawsuit . On the other hand, criminal liability refers to the legal responsibility for one's actions that violate criminal law and are punishable by imprisonment, fines, or other penalties .
 In the context of contracts, civil liability arises when one party breaches a contract and causes harm to another party. The harmed party can sue the breaching party for damages in a civil court . Criminal liability arises when a party commits fraud or engages in other criminal activities while entering into or performing a contract. In such cases, the breaching party can be prosecuted in a criminal court and may face imprisonment or fines ■
 Whether civil or criminal, this is what was discussed in this article, which relied on a group of studies and in accordance with the legal approach applied in studies and research, to arrive at a set of results.
 Contract law balances holding parties accountable for their promises, while acknowledging that not all breaches are willful reneges of core obligations. In good faith disputes, remedies aim to make the aggrieved party whole, not punish the breacher. But for deceitful misrepresentations and other unlawful contract activities, harsher civil penalties and criminal sanctions come into play. Contract law weaves together civil liability, criminal fraud deterrence, and equitable remedies to produce a nuanced, multi-faceted system of justice surrounding contractual agreements and disputes.
 The article finds that the law balances holding parties responsible for their promises, while recognizing that not all violations amount to a deliberate deviance from basic obligations. In good faith disputes, remedies aim to make the injured party whole, not to punish the wrongdoer. But for deceptive misrepresentations and other illegal contract activities, more severe civil penalties and criminal penalties apply. Contract law combines civil liability, criminal fraud deterrence, and equitable remedies to produce a nuanced and multifaceted system of justice surrounding contractual agreements and disputes.

The Synergistic Benefit Mechanism of Medical and Recreational Marijuana: Economic Gains of Cannabis Taxation based on US Federal Law for Corporate Governance and Sustainability

Purpose: Marijuana legalization is brought about by the demands of people as social utility either for medical or recreation consumption. It is essential that the control of cannabis fulfills the goals of corporate governance and sustainability. This paper aims to measure the profitability of marijuana taxation over a time period as trend analysis of economic gains.
 Methodology: The socio-legal taxation of marijuana in the United States follows a descriptive research design. The beneficial gains of marijuana as medical use created this substance to be controlled under contract law transactions. The removal of cannabis in US Pharmacopeia modified the tort law restriction for legalization of marijuana as recreational consumption. The recreational cannabis taxation together with medical marijuana state taxes are essential to fulfill the 4 pillars of corporate governance and sustainability for strengthening constitutional rights. The legalization of marijuana through votes of the people repeals the criminal punishments imposed by federal law to advocate the synergistic concepts of economic theory.
 Findings: State tax theory creates voluntary principles in transactions together with trend analysis in prices and demands of people resulting to efficiency in mutual gains through lessening the value of participation under a harmful environment. Hence, Pigouvian tax follows the public welfare of medical marijuana and common revenue of recreational cannabis diminishes the overall costs of social consumption. Federal laws control marijuana usage through Pigouvian taxes of medical use with lessened participation in externalities and common revenue in cannabis consumption, as a legalization process of other states in reinstating tort law for business purposes, while still enforcing criminal penalties to remaining states, in compliance with US federal laws, not in favor of medical and recreational marijuana use. The economic theory supports the legalization of medical and recreational cannabis use through taxation as profitable gains by allowing voluntary market transactions of marijuana as fulfillment to corporate governance and sustainability for more allocation of public funds. From 2002 to 2018, medical and recreational cannabis users increased to 70% of social utility through lessening the value of participation, a win-win in efficiency of economic design. In 2010, marijuana taxation generated $8.7 billion as federal public funds, with accompanied criminal penalties to other states.
 Recommendations: Economic theory is a conceptual design supporting the beneficial gains of legalizing marijuana via taxation. This economic design promotes fair responsibility of market gains while still in strict compliance of enforcing criminal punishments to violators. The people’s votes for legalization of marijuana taxation indicates that this economic policy has come by choice in a particular state as constitutional right of either a medical opinion or business ethics. However, cannabis is deemed to be a substance subject for criminal liabilities, similar to other patent drugs under taxation as well. Hence, it is suggested to create artificial intelligence using authorless works for clinical trials and other relevant studies subject to patent law of marijuana use, as advocacy of public welfare and safety since voluntary transactions are apparent harmful environment.

The Duty of Care of Individuals for ghg Emissions under Dutch Tort Law

Abstract In 2021 the District Court of The Hague ordered Royal Dutch Shell to reduce its greenhouse gas emissions by 45% until 2030. The Court emphasised the relevance of each individual reduction to the fight against global warming, raising the question of whether also individuals have a duty of care to reduce their emissions. Applying the considerations of the Court to individuals, this contribution first argues that as human rights not only protect the victims of global warming but also individuals meeting their needs through emissions, individuals do not bear such a duty of care. However, we may soon observe the gradual development of a social norm outlawing excessive emissions for non-basic needs. This contribution goes on to argue that the tort law liability of individuals for their ghg emissions would also not be desirable from a law-and-economics perspective. It would be more effective and less costly to hold big companies liable or to impose emission standards or carbon taxes.

Medical Negligence orMalpractice: Critical Review of Relevant Laws in Pakistan

Introduction The terms 'medical negligence or medical malpractice' are often used synonymously, however, in stricto senso 'medical negligence' include “criminal negligence” while 'medical malpractice' encompasses civil negligence including two other types, i.e., contributory and third party negligence. The word negligence is a noun meaning “not to give proper care or carelessness”. Therefore, the medical negligence means medical treatment without proper care or is an act or omission by a medical practitioner therein he has deviated from accepted standards of practice in the medical fraternity and caused damage/injury or death to the patient. In case of damage/injury, it falls within the ambit of civil negligence and in case of death of patient; it falls within the purview of criminal negligence. Medical Negligence comes under the category of tort law. The scope of medical negligence is not limited to conduct of the medical practitioner alone. It extends to his staff working under his supervision (3rd party negligence) and in a hospital setting to the whole unit (captain of ship theory/master is responsible /vicarious liability) and in some cases role of patient also contribute in it (contributory negligence).

On the Illegality and Regulation of Algorithmic Price Discrimination in China's Digital Economy

The legal issue of algorithmic price discrimination sparked by the in-depth use of big data and algorithm techniques has emerged as a significant concern in the development of China's digital economy. Although Chinese law has implemented many regulations on the collection and protection of personal information, data security and governance, as well as on price discrimination, instances of algorithmic price discrimination have arisen in judicial practice. The legal issue surrounding algorithmic price discrimination has not yet been fully resolved. Legal studies in China on this issue mainly uses "big data killing" or "algorithmic price discrimination" to define it. Regarding the legal classification and regulation of algorithmic price discrimination: the Anti-Monopoly Law's regulatory measures are limited from a competition law standpoint. Instead, Anti-Unfair Competition Law provides a more appropriate framework. As for civil law, the question of whether the algorithmic price discrimination qualifies as a civil tort still requires discussion; nevertheless, it satisfies all the constitutive elements of fraud in Chinese civil law.

Apologies under Spanish Tort Law

Apologies under Spanish Tort Law

The Role of Desert in Tort Law

The Role of Desert in Tort Law

The Legal Dynamics of E-Commerce and Direct Selling: A Comprehensive Analysis of The Amway India Enterprises Vs. Union of India Case

This research paper delves into the landmark case of Amway India Enterprises vs. Union of India, adjudicated by the Delhi High Court in July 2019. The case pertained to alleged interference by e-commerce giants such as Amazon and Flipkart in the contractual relationships between direct selling companies and their independent sales representatives. The paper dissects the intricate legal facets of this case, encompassing constitutional matters, intellectual property rights, information technology laws, consumer protection, and contractual and tort laws. A central issue examined was whether e-commerce platforms were bound by the Direct Selling Guidelines, 2016, and if their actions constituted trademark violations. The case also probed the applicability of Section 79 of the Information Technology Act and intermediary responsibilities. The Delhi High Court's judgment wielded substantial influence over the Indian business landscape. E-commerce platforms were mandated to cease commercial activity on plaintiffs' products and furnish detailed seller data, necessitating operational adjustments. In conclusion, the Amway India Enterprises case signifies the evolving commerce dynamics in the digital era and underscores the pivotal role of the legal system in ensuring fair competition, consumer safety, and intellectual property preservation. As business landscapes evolve, this case illuminates the path toward a responsible, transparent, and secure online marketplace in India.

Putting “Duty” Back on Track

Abstract Brown v. USA Taekwondo grapples with the problems that have dogged California law governing the determination of duty in negligence for more than fifty years now. The great California duty decisions of the late 1960s—Rowland v. Christian and Dillon v. Legg—were the bookends to an age of American tort law inaugurated by MacPherson v. Buick and Palsgraf v. Long Island Railroad. MacPherson and Palsgraf altered both the internal structure of negligence law and tort law’s relation to contract and property by making reasonable foreseeability of harm the master principle of responsibility in tort. Rowland and Dillon brought the age of reasonable foreseeability to a close. As their implications unfolded over time, we learned that making reasonable foreseeability of harm the fundamental test for both the existence of obligation and the extent of liability imposes more responsibility than we can bear. Reaching the limits of reasonable foreseeability as the master principle of duty doctrine left courts hard-pressed to say when fundamental responsibilities of care should be expanded and when they should be contracted. Ever since, California courts have been muddling their way through duty cases. They have been uncertain both about when an actor bears some responsibility for reducing a risk or mitigating a harm and about how they should go about making such determinations. USA Taekwondo’s efforts to recast Rowland’s laundry list of relevant factors as a two-step test shows us how we might begin to bring our own age of confusion to a close.

Disentangling Immigration Policy From Tort Claims for Future Lost Wages

Abstract While largely unknown, the Indiana Supreme Court’s 2017 opinion Escamilla v. Shiel Sexton Co. deserves to be canonized for closely examining – and, ultimately, rejecting – the incursion of federal immigration law and policy into state tort law. For over two decades, state and federal courts have relied on the United States Supreme Court’s 2002 ruling in Hoffman Plastic Compounds v. NLRB, to deny future lost wages awards to successful tort claimants who lack documentation. Escamilla reveals the faulty logic underlying this caselaw and provides a clear and straightforward framework for future courts to employ when faced with this issue. Ultimately, Escamilla demonstrates why plaintiffs’ undocumented status, alone, is insufficient to allow tortfeasors to escape paying tort victims what often amounts to substantial damages. In doing so, Escamilla fortifies the compensation and deterrence functions of tort law.

What We Talk About When We Talk About the Duty of Care in Negligence Law: The Utah Supreme Court Sets an Example in Boynton v. Kennecott Utah Copper

Abstract Every day, state common law courts define the duty of care in negligence law. There is no formula for how courts should determine duty. Yet when judges are charged with important decisions about whether to open or shut the courthouse doors to whole categories of claimants, judges need some framework for decision. This article commends as an exemplar, the Utah Supreme Court’s decision in Boynton v. Kennicott Utah Copper, a take-home asbestos exposure case. The power of Boynton is not only the answer it provides, but also the coherent framework for analysis that Justice Constandinos Himonas’ opinion sets forth. The opinion’s framework incorporates established principles as well as important tort policies such as harm prevention. Boynton’s structure at once provides the stability and consistency of precedent befitting common law adjudication while also incorporating the public policy and pragmatic concerns that have long guided tort law’s development. Boynton’s framework achieves a similar result to the one in the Third Restatement—creating duty and no-duty rules with possibility of exception based on principle and policy factors. However, Boynton does so through traditional terminology that has aquired meaning through repeated historical application. Courts, scholars and students would be well advised to examine the Utah Supreme Court’s approach to duty analysis.

No adults allowed: Adolescents and Medical Decision Making.

The majority of the literature focused on whether consent should be extended to the adolescent population arises from themes adapted from American tort law. In contrast to the USA, Ontario does not delineate an age of consent for medical treatment and relying on American guidelines to guide practice in Ontario is problematic. While the literature is saturated with discussions for and against seeking adolescent consent, there are currently no bioethical guidelines on adolescent consent in the province of Ontario. This paper explores adolescent refusal of care and adolescent request for care in opposition to parental wishes. The paper seeks to answer the following questions: What is the difference between an adolescent and an adult in medical decision-making? What are the barriers to seeking adolescent consent? And, can the neurobiological argument be an accurate guide for obtaining adolescent consent?

Vicarious liability or liability for the Acts of others in Tort A Comparative perspective

Vicarious liability is a rudimentary concept in Law of Torts, It is a legal principle that holds an individual or business accountable for the deeds of their agents or employees. This research paper would explore vicarious liability in a comparative view, analyzing how different legal systems around the world approach this doctrine and its implications. This paper explores the historical development of vicarious liability and how it has changed across different jurisdictions. The study also examines current topics including the gig economy, the expansion of remote employment, and developing technology while examining recent advances and trends in vicarious liability. It assesses the adaptability of conventional vicarious liability rules to the changing nature of contemporary work relationships. This research paper seeks to advance knowledge of this significant area of Law of Torts by offering a thorough comparative examination of vicarious liability. It provides insightful information.

Problems of Compensation of Losses in Breach of Civil Law Obligations

Relevance. One of the basic approaches for civil law is to allow the injured party to claim full compensation for losses, including in case of violation of civil law obligations. The widespread use of this approach is based on universal human notions of reasonableness and fairness of restoring the property sphere of the injured party at the expense of the party that committed the violation. Compensation of losses plays a crucial role among the means of protection of subjective civil rights provided for by Article 12 of the Civil Code of the Russian Federation.The purpose of the study is to develop theoretical provisions that determine the features of the implementation of the principle of full compensation for damages in breach of obligations at the current stage of development of market economy and legislation of the Russian Federation.Objectives: to identify the problems associated with the implementation of the principle of full compensation for losses in the civil law of the Russian Federation; to determine the features of ensuring the balance of interests in the compensation of losses; to determine the directions of further development of legal regulation of the issues under consideration.Methodology. When writing the work, dialectical-materialistic method, systematic method, methods of analysis and synthesis, formal-legal method were used.The results of the research are of a theoretical and applied nature and are aimed at improving the quality of legal regulation of civil legal relations.The conclusions made in the article are of a discussion nature, aimed at continuing the research in the frame-work of the stated subject matter, development of basic principles that allow to uniformly resolve the problems associated with the realization of the rights to full compensation for damages for breach of obligations, including in a complex system of relations between individual participants of civil turnover. The article is a continuation of the author's scientific research on issues related to the problems of civil liability.

Pravo člana društva na naknadu refleksne štete: Uporedno-pravna i pozitivno-pravna analiza

The subject of the analysis is shareholder’s right to compensation for reflexive loss that occurs in its property due to the deterioration of the action taken against the company. While most rights adopt the so-called principle of prohibition of compensation for reflexive loss, this right is recognized in investment arbitration disputes. The paper aimed to determine the position of Serbian law concerning the observed conflict of rights. In Serbian law, the shareholders may have the right to claim compensation for reflexive loss if such a claim follows the principle of integral compensation for damages. In this respect, Serbian law is more favorable to the approach of tribunals in investment arbitrations than national laws. The approach of Serbian law should be maintained, taking into account all criticisms of the course that recognizes this right of shareholders to achieve the functions of tort and company law ultimately.

РЕТРОСПЕКТИВНИЙ АНАЛІЗ ВІДМЕЖУВАННЯ ПОРУШЕНЬ ВІД ЗЛОЧИНІВ ТА ПРОСТУПКІВ ЗА КРИМІНАЛЬНИМ ЗАКОНОДАВСТВОМ ФРАНЦІЇ

The article provides the analysis of one of the first criminal laws that almost for two centuries had an essential impact on European criminal law. It was the first law that differentiated between crimes, offences, and violations. Such differentiation has survived till these days. Besides, the Article draws an analogy between the types of contraventions under the Criminal Code of France 1810 and the administrative offenses provided for by the Code of Ukraine on the Administrative Offenses. The Article provides an insight into the modern development of French Administrative and Torts Law and into the determination of the police courts authorities. It was found that although the “French” sub-system of law provides for the differentiation between the Administrative and Torts Law and criminal law, such differentiation is just theoretical. On the one hand, the punishment exists in the form of a fine and the types of contraventions are not regulated by the criminal code which makes its criminal character quite doubtful. On the other hand, however, the procedure of the administration of punishment through the imposition of sentence, deprivation of social rights, and seizure of property, as well as the complete regulation of the mentioned issues by the criminal, criminal and procedural laws testify to inseparability of the administrative offenses from the sphere of the criminal law. The article considers the possibility of the regulation of the Administrative and Torts Law of Ukraine so that the types of non-criminal offenses in analogy with the French law are regulated by the industry-specific law without the creation of the codified act in contrast to the outdated Code of Ukraine on the Administrative Offenses. Key words: Criminal Code of France, administrative offenses, police court, Code of Ukraine on the Administrative Offenses.