ABSTRACT: The object of this paper is the tort liability, which represents an important element of the legal relationships. This paper refers at the legal regulation of the tort liability, as well as its scope. This paper also refers at the two types of liability, representing the general liability that we find in the civil law, which is the relation between the tort liability and the contractual liability. This paper also presents the comparison between the tort liability and the criminal liability, as well as the relation between the tort liability and the patrimonial liability specific to the labour law. We shall speak of the types of tort liability and their classification, referring at the hypotheses regulated by the Civil Code and the related legislation, as well as of the criterion of the fundamental principle of liability. KEYWORDS: criminal liability, contractual liability, patrimonial liability, tort liability, unlawful act
The tort liability of teacher qua teacher encompasses a rather narrow ambit and is largely restricted to cases in which it is alleged that the right of the teacher to enforce discipline has been abused and that the teacher is therefore liable in damages for the commission of an intentional tort. The question in such a case is whether the teacher has exceeded, or acted outside the scope of, his privilege.A particular common law concept was developed very early here defining the privilege as one deriving from the fact that the teacher stood in loco parentis,' and the privilege still rests principally on that concept, although the content of the Latin phrase has undergone considerable change. Of course, there are many harms resulting from negligence whose setting is peculiar to schools or which happen with greater frequency in schools. If the teacher is the negligent actor whose conduct or omission to act (where he is under a duty to act) has caused the harm, he can find no special rules to raise in his defense--he no longer stands in the place of the parent, who is not liable to his child for negligent harm. Under the common law, which obtains in the majority of states, the teacher in the case of either intentional or negligent tort is the only defendant against whom the injured plaintiff can proceed, since the school-governing authority for various reasons is clothed with immunity, as an attribute of sovereignty and as a result of the classification of public education as a governmental function, because the courts will not allow the diversion of public proceeds to satisfy tort claims, or because the doctrine of respondeat superior does not apply. In a few states, the school unit may be sued directly or the teacher may transfer the burden of his liability for negligent, but not intentional, acts to the school-governing body if the act has been committed in the course and scope of the teacher's employment. In both common law and statutory jurisdictions the ordinary rules of negligence are said to obtain. As ...
The Government Emergency Ordinance no. 195/2005 on the protection of the environment1, stipulates in art. 95: (1) liability for damage to the environment has an objective character, independent of guilt. In case of several authors, the liability is a joint responsibility; (2) as an exception, liability is subjective for the prejudice caused to protected species and to natural habitats, in accordance with the specific regulations; (3) the prevention and remedy of the damage done to the environment are carried out in accordance with the provisions of the present emergency ordinance and specific regulations. From this text, it results that the rule in environmental law is represented by objective liability, independent of guilt (and the exception is subjective liability) and joint liability (in case of plurality of authors). Objective liability and joint liability are the expression of the fundamental "polluter pays" principle (stipulated under art. 3 letter e of GEO no. 195/2005 on the protection of the environment), actually meeting the needs of the victim who, on the one hand does not have to prove the guilt of the doer and, on the other hand, in case of plurality of authors, has the possibility to claim full remedy for damage from any of them. Keyword: ecological prejudice; the abuse of right; the damage risk; the guarantee theory
The protective and friendly attitude with which the courts and legislatures have viewed charities is reflected in the rule of nonliability for torts committed by such eleemosynary institutions. The rationales for this exemption may be briefly classified into five main groups. The first and most all inclusive, is the trust fund doctrine based on an early English case and exemplified by the Massachusetts decisions. Under this theory a charitable institution can not be held liable for the negligence of servants and employees or administrative officials.Nor is the court concerned with the status of the plaintiff as beneficiary, employee or stranger. The trust fund can not be diverted from the charitable purposes for which it was intended to compensate for one injured in the execution of these duties.
Despite decades of effort, the international community has stumbled in attempts to craft tort remedies for victims of transboundary environmental damage. More than a dozen civil liability treaties have been negotiated that create causes of action and prescribe liability rules, but few have entered into force, and most remain unadapted orphans in international environmental law. In this Article, I explain the problematic record of tort liability regimes by developing a theoretical model of liability negotiations grounded in regime theory from political science. Based on this model, I conclude that negotiated liability regimes have foundered because of three main roadblocks: ( 1) interest conflicts between developed and developing states; (2) high transaction costs and low expected payoffs; and (3) incorporation of treaty provisions that are too onerous for states to accept. I conclude that strengthening tort remedies will require changing the substantive content of liability treaties and the process of negotiating them. I also show how liability principles can be strengthened outside the treaty-making process through diffusion of norms against trans boundary environmental damage.
Advancing a bold theory of the relevance of tort law in the fight against human rights abuses, celebrated US law professor George Fletcher here challenges the community of international lawyers to think again about how they can use the Alien Tort Statute. Beginning with an historical analysis Fletcher shows how tort and criminal law originally evolved to deal with similar problems, how tort came to be seen as primarily concerned with negligence and how the Alien Tort Statute has helped establish the importance of tort law in international cases. In a series of cases starting with Filartiga and culminating most recently in Sosa, Fletcher shows how torture cases led to the reawakening of the Alien Tort Statute, changing US law and giving legal practitioners a tool with which to assist victims of torture and other extreme human rights abuses. This leads to an examination of Agent Orange and the possible commission of war crimes in the course of its utilisation, and the theory of liability for aiding and abetting the US military and other military forces when they commit war crimes. The book concludes by looking at the cutting-edge cases in this area, particularly those involving liability for funding terrorism, and the remedies available, particularly the potential offered by the compensation chamber in the International Criminal Court. ; https://scholarship.law.columbia.edu/books/1072/thumbnail.jpg
The legislative and judicial dismantling of sovereign immunity is among the more significant and celebrated reforms of recent American administrative law. In many instances, this development has given those seeking damages for wrongful governmental action their first and only defendant. Even in situations in which litigants already had a cause of action against individual public officials, making the government amenable to suit has enhanced the chances of actual recovery, since officials often lack the means to satisfy judgments rendered against them. The immunity from liability enjoyed by public officials also has undergone a complex series of changes. Though still in flux, this controversial area of the law today finds officials exposed to a considerable risk of personal liability for the wrongs they commit in connection with their performance of duty. Although these developments might have gone even further in lowering the shield of immunity from the government and its officers, they represent a blessing for the victims of official wrongdoing. However, the emerging coexistence of governmental and officer liability has created a new problem of coordination. Without attempting to define the proper scope of liability for harm arising out of governmental activity, this Article explores various aspects of the coordination problem. After briefly sketching recent developments in governmental and officer immunity, and discussing the need for a coherent system of governmental tort law, I shall examine various ways of integrating governmental and officer tort liability so as to accommodate the purposes that the law of governmental torts may appropriately be asked to serve. A brief look will be taken in this connection at the approaches to the problem that have been adopted in French and German law.
Of no small proportions was the task faced by the judges of this state when the legislature saw fit to superunpose upon our background of common law a system of community property, a development of the civil law And nowhere are the difficulties of reconciling these two conflicting systems felt more acutely than in the field of tort liability. In addition to inherent difficulties there is the urge which constantly influences judges to circumvent existing law when it requires turning away a just claimant empty-handed (or, what amounts to the same thing, turning hun away with a judgment winch cannot be satisfied). This urge is, often buttressed by a strong public policy in favor of protectmg the class of claimants to which the plaintiff belongs. Little wonder then that the decisions in this field do not always preserve inviolate the "symmetry" of the "edifice of justice."
The United States Government owns and operates by far the largest fleet in the Americas. It is a fleet which includes not only the high profile carriers, cruisers and destroyers but a miscellany of tugs, barges, tankers, frigates, car floats and lighters. It includes cargo vessels as well as warships. Thus, the potential for the commission of maritime torts is manifest simply from the number and variety of government vessels at sea. Add the myriad responsibilities exercised by Government agencies such as the United States Coast Guard, and the potential for tortious involvement is enormous.
The Portuguese Constitution, in article 22, instituted the general principle of tort liability of the State and other public law entities. Consequently, ordinary legislation established the tort liability of the State into the Portuguese Legal Order, by means of Decree-Law 48051, of 1967. This decree, which was criticised extensively, was amended by virtue of Law 67/2007, of 31st December, establishing the regime for tort liability arising from losses caused by third parties, due to the acts of public management in relation to all the functions of the State, i.e. i) administrative, ii) legislative, and iii) jurisdictional.
Both the common law and the law of civilian jurisdictions recognize an unborn child as in esse for purposes of receiving certain civil rights. In most of the cases involving prenatal injuries, it has been advocated that the tort law, by analogy to criminal law and property law, should recognize an unborn child as a person in being. The courts formerly rejected this argument, saying that in order to protect social and property interests a "fiction" has arisen that an unborn child is in being but that this "fiction" should not be invoked to protect personal security. The recent cases have found the protection of an unborn child's personal security to be equally important as the protection of social and property interests, but have impliedly limited the protection to the personal interests of a viable child. The object and purpose of this article is to analyze and review development of tort liability for injury to the unborn - from the first precedential case till the newest era of liability for prenatal injuries, especially in those conditions, when Georgian Civil Legislation does not recognize this type of Tort Liability.
The Portuguese Constitution, in article 22, instituted the general principle of tort liability of the State and other public law entities. Consequently, ordinary legislation established the tort liability of the State into the Portuguese Legal Order, by means of Decree-Law 48051, of 1967. This decree, which was criticised extensively, was amended by virtue of Law 67/2007, of 31st December, establishing the regime for tort liability arising from losses caused by third parties, due to the acts of public management in relation to all the functions of the State, i.e. i) administrative, ii) legislative, and iii) jurisdictional.
This article discusses issues of tort liability surrounding trade unions and collective bargaining in Canada. In particular, it examines the impact of compulsory collective bargaining legislation upon the common law. Through a discussion of several cases, the author examines the various techniques by which the common law imposes liability for strikes. Specifically, he discusses the tort doctrines currently employed by the courts such as the doctrine that breach of the Labour Relations Act per se confers a civil cause of action, the doctrine of civil conspiracy, as well as the doctrine of intentional interference. The author then discusses two particular decisions as a means of examining arbitration as an alternative to litigation in such cases. He concludes with a discussion of the physical, institutional, and analytical difficulties arising from cases imposing liability for strikes in Canada, and offers some of his own suggestions for counteracting such difficulties.
This Article examines the interactions between European Community and national law, in the context of Member State public tort liability. Specifically, the Article analyzes Brasserie du Pecheur v. Federal Republic of Germany, a case that pitted German beer purity legislation against requirements of Community law. In that case, the European Court of Justice (ECJ) ruled that acts or omissions of the national legislator may, under certain conditions, give rise to Member State public tort liability, which is adjudicated in the national court systems. The German Federal Court of Justice dismissed the case after finding that the conditions of state liability were not met under either German or Community law. The Article discusses in detail the nature and characteristics of the Member State liability principle conceived by the ECJ; despite the silence of treaty law on this issue, the ECJ has long supported the notion that a Member State may incur tort liability for breaching community law. As a result of ECJ jurisprudence, supranational judge-made law may deeply permeate domestic legal orders. However, the German court's dismissal of the damages claim in Brasserie du Pecheur demonstrates that Member State liability is not open-ended. Rather, a balance may be achieved between European Community (EC) compliance interests and Member State domestic institutional prerogatives.
Risk regulations are generally based on a stylized view of the behavior of the individuals affected by the regulation. These behavioral assumptions establish the basis for regulation and also influence the character of the regulation that will be pursed. The mix of behavioral assumptions that provides the basis for policy is often inconsistent. In some cases policymakers assume that irrationality prevails if that assumption will promote government intervention. If, however, individual perception of the risk and response to it is required to make a policy effective, risk regulators do not recognize individuals' cognitive limitations. These stylized views of risk-taking behavior are often sharply contradicted by empirical evidence on individual behavior. Errors in judgment and decisions do exist, but all too often these errors provide the impetus for a government policy. The net effect is that these policies often reinforce market failures rather than eliminate them.
