The structure of tort law / Nils Jansen and Sandy Steel.

Format:

Book

Author/Creator:

Jansen, Nils, author.

Steel, Sandy, author.

Series:

Oxford scholarship online.

Oxford scholarship online

Language:

English

German

Subjects (All):

Tort liability of banks.

Physical Description:

1 online resource (550 pages).

Edition:

First edition.

Place of Publication:

Oxford, England : Oxford University Press, [2021]

Summary:

This English translation makes available to anglophone readers a modern classic of German tort theory. It argues that modern German tort law is faced with doctrinal tensions based on problematic theoretical assumptions which stem from historical conceptions of tortious liability, inappropriate to modern times. From a theoretical perspective, it argues against the prevalent doctrinal view in Germany that conceives of tortious liability as split between two tracks - a fault-basedtrack and a strict liability track - each with different normative foundations.

Contents:

Cover

Half-Title

Title

Copyright

Preface

Contents

Abbreviations

Legislation

Logical Symbols

Introduction to the English Translation

I. Structuring Tort Law

II. Transformations of Tort Law

III. Doctrine

Translator's Note

Introduction-​The Aim of the Inquiry

I. Problems

1. Delict, Risk Distribution, and Liability

2. The Problem of Unlawfulness

3. On Tort Law's Twin-​Track Nature

II. On the Current State of Legal Doctrine

1. 'The Metamorphoses of Tort Law'

2. Towards a New Understanding

III. The Need for a Satisfactory Doctrinal Structuring of Tort Law

IV. A Map of the Book and its Terminology

Part I A Theoretical Framework

1 Tort Law Norms

I. Three Models

1. The Sanction Model

2. The Strict Liability Model

3. The General Standard of Conduct Model

II. The Descriptive Adequacy of the Models of Tort Law

1. The Sanction Thesis

2. The Irrelevance of Legal Duties Thesis

2.1 Law without legal duties?

2.2 On economic norm theory

2.3 Breach of duty and compensatory damages

3. A Proviso: On the 'Twin-​Track Nature' of Tort Law

III. The Subject Matter of Tort Law

1. The Demarcation of Legal Spheres: Actual and Economic Integrity

2. Compensatory Damages: A Restriction upon One's Freedom?

3. An Excursus: The Distribution of Risk as a Two-​Sided Issue

IV. Conclusions

2 The Structure of Normative Reasoning in Tort Law

I. The Aristotelian Legacy

1. A Categorical Distinction

2. Distributions and Interactions

3. Hierarchical Relationships and Relationships of Equality

4. Distributive Principles and Conduct Rules

5. Some Conclusions

II. Compensation, Distribution, and Liability

1. The Correspondence Thesis

2. The Correction of Infringements of Rights

2.1 Epstein's definition of rights.

2.2 Epstein's theory of causation

2.3 Distributive elements in Epstein's theory

3. The Correction of Breaches of Duties

3.1 Weinrib's theory

3.2 'Normative' gains and 'factual' losses

3.3 Critique

3.4 Distributive elements in Weinrib's theory

4. Protected Interests and Liability Standards

5. Distribution as an Alternative?

5.1 Wealth effects and distribution of wealth

5.2 The distribution of the risk of loss

5.3 The distribution of liability amongst collective agencies

5.4 Excursus: liability and liability insurance

6. Some Conclusions

III. The Idea of Outcome Responsibility

1. The Framework of Tort Law

2. Substantive Issues

3. Complementarities and Conflicts

4. Excursus: Delimiting Tort Law from Causes of Action Independent of Individual Responsibility

IV. Outcome Responsibility and Duties to Compensate

1. Generating Liability and Excluding Liability

2. Excursus: The Ambiguity in the Idea of an Accident-​on Equity-​Based Liability in Tort Law

V. Conclusions

3 The Effect of Tort Liability upon Behaviour

I. The Economic Model . . .

1. Types of Tort Rule

1.1 Strict liability without a contributory negligence defence and a rule of no liability

1.2 Fault liability and strict liability with the defence of contributory fault

1.3 Complex liability rules

1.3.1 Fault liability and contributory fault

1.3.2 Strict liability, contributory fault, and operational risk

1.3.3 Differentiated standards of care

2. The Extent of Liability

3. The Bearers of Liability

4. The Effect of Insurance

II. . . . And a Glimpse at Reality

1. Theses about the Effect of Tort Law upon Behaviour

2. An Empirical Overview

2.1 Accidents in the workplace

2.2 Medical liability

2.3 Some further areas

2.4 Traffic accidents

2.5 Some results.

3. Explaining these Results

III. Consequences

Part II A Step Back . . .

4 Delictual Liability in Roman Law

I. Iniuria and Poena: On the Development of the Law of Delict

1. Penalty and Retaliation: The Law of XII Tables

1.1 The sanctions: talion and poena

1.2 Compensation for loss

1.3 Retribution as a private law claim: the law of delict as a 'private criminal law'

2. Compensation as Poena: The Lex Aquilia

2.1 Damnum

2.2 Iniuria

2.2.1 The puzzle of its original meaning

2.2.1.1. An abstract concept of iniuria and a concrete delictual cause of action?

2.2.1.2. The infringement of a right as a delict

2.2.2 The function of iniuria

3. Some Conclusions

II. From Sanction to Compensation

1. Shifts in the Law of Delict (I)

2. Steps towards a Public Criminal Law

2.1 Iudicia publica

2.2 The imperial cognitiones extra ordinem

2.3 Conclusions

3. Actio Mixta

3.1 Id quod interest

3.2 Expansion of the elements of the Aquilian claim

3.3 Damnum culpa datum

3.3.1 An overview

3.3.2 Duties of conduct and the distribution of risks of loss

3.3.2.1 Liability for culpa levissima and infirmitas

3.3.2.2 Liability of the homo liber bona fide serviens

4. Conclusions

III. The Burdens of Justinian's Legacy

5 Sanction and Duty, Individual Rights, and Compensation: On the Rebirth of the Roman Law of Delict in Natural Law Discussions

I. The Glossators and Commentators

1. Transforming the Law of Delict (II)

1.1 Pure economic losses

1.2 Indirect injuries

1.3 Corpus liberi

1.4 Problems of understanding

2. From Punishment to Sanction

2.1 The differentiation of compensation from punishment

2.2 Compensation as sanction

3. The Fault Principle

4. Culpa Levissima

II. Transformations (III) in the Usus Modernus.

1. A Private Law General Clause

2. Dependency Claims, Claims for Pain and Suffering

3. Doctrinal Consequences

3.1 Iniuria and the idea of conduct-​based unlawfulness

3.2 The problem of culpa levissima

3.3 The idea of a delictual guarantee liability

4. Some Conclusions

III. Dominium, Ius, and Iniuria

1. Ius Perfecte Disponendi

2. Dominium as Power of Control and Absolute Right

2.1 Dominium as ius

2.2 Freedom and the assignment of legal goods

2.3 The doctrine of restitution and the Aquilian law of delict

3. Ius and Iniuria

3.1 Quod vere et proprie nostrum est: outcome unlawfulness in Hugo Donellus

3.2 Individual, absolute rights as the foundation of the law of delict in Hugo Grotius

IV. Natural Duties and Natural Fairness

1. Moral Duties and Compensation in Samuel Pufendorf's Theory

1.1 Delictual liability as legal sanction

1.2 Strict liability and culpa levissima

1.3 Some conclusions

2. Larva Legis Aquiliae Detracta Actioni de Damno Dato: Tort Law in Christian Thomasius

2.1 Imputation, compensation, and punishment

2.2 Protection of legal goods and distribution of risk

2.3 Some conclusions

3. Christian Wolff and the Legacy of Natural Law

6 Steps towards a Modern Tort Law

I. Pandectist Theory and Pragmatic Practice: Private Punishment, the Fault Axiom, and Strict Liability in Claims between Neighbours.

II. The Development of Strict Liability for Risk

III. Damages as Compensation

IV. The Fault Principle in Crisis

1. The Normative Foundations of Tort Law

1.1 Edgar Loening

1.2 Joseph Unger

1.3 Rudolf Merkel and Emil Steinbach

1.4 Victor Mataja

1.5 Problems

2. On the Theory of Strict Liability for Risk

V. A View Ahead

Part III Doctrinal Foundations

7 Injurious Conduct

I. Duties of Care (Verkehrspflichten)

1. Delictual Duties of Conduct in the Nineteenth Century

2. Developments under the BGB

II. Unlawfulness and Fault

1. Steps towards a Conceptual Differentiation

2. Normative Considerations

3. Difficulties

3.1 The 'concept of unlawfulness'

3.2 The dominant doctrinal understanding

3.3 Unlawfulness, standards of care, and objective negligence

4. A View Ahead

III. Negligence, Fault, and Liability Standards

1. Culpa levissima?

1.1 The system of the doctrine

1.2 The reaction of the case law

2. Will-​Based Fault and Objective Standards

3. Liability Guarantees and Personal Responsibility

3.1 'Personal unacceptability'

3.2 'Error of law'

3.3 Flexible standards

8 Violation of a Right, Economic Loss, and Compensation

I. Absolute, Individual Rights?

1. Violation of a Right as Delict

2. On the Idea of an Individual Right

2.1 Rights as reasons

2.2 Individual rights and objective legal duties

II. The Twentieth-​Century Discussion

1. Rights as Reasons for Duties Not to Injure

2. Objective Duties Instead of Individual Rights?

3. The Allocative Content of Rights

3.1 Protection of legal goods and Obliegenheiten to take care

3.2 Problems

3.2.1 Interference with business activity

3.2.2 The personality right

III. The Allocation of Legal Goods

1. Reliance upon the Integrity of an Object.

2. Right Infringement and Allocation of Legal Goods.

Notes:

This edition also issued in print: 2021.

Translated from the German.

Description based on online resource; title from home page (viewed on December 14, 2021).

Includes bibliographical references and index.

Description based on print version record.

ISBN:

9780191015090

0191015091

9780191015106

0191015105

9780191774164

0191774162

OCLC:

1500762792