158 m a u r o b u s s a n i a n d v e r n o n v a l e n t i n e p a l m e r

Landmark cases decided by the Swedish courts in 1987 and 1990 show the judiciary to be moving in this direction.130 Accordingly, it may now be the position that compensation under the Tort Liability Act 1972 is at the outset available only when the economic loss is caused by a crime; however, the judge is not necessarily prevented from awarding compensation outside of the Tort Liability Act 1972 in exceptionally important situations. Beginning from the far right of the liability spectrum, the Swedish and Finnish systems seem to be moving, albeit slowly and incrementally, towards the middle.

Conclusion

In our chapter on the liability regimes of Europe, we have attempted to set forth a coherent way of describing the various approaches of the legal systems to the issue of pure economic loss. What is then the answer to the question posed in the introduction to this chapter? The answer is that a common theoretical matrix of pure economic loss does not exist in Europe.

The ways of approaching the problem are multifarious. We find the issue absorbed within the mainstream of the general clause in the liberal regimes and, in some others, we find it driven by the fear of ‘liability in an indeterminate amount for an indeterminate time to an indeterminate class’.131 This fear is managed of course through technical devices. These are, basically, the duty of care element in the pragmatic

130See NJA 1987, p. 692; NJA 1990, p. 24. In the 1987 decision (see discussion in von Bar, Law of Torts, I, p. 246), a real estate valuator issued a certificate to an estate agent which negligently assessed certain property to be five times higher in value than it in fact was. (The property was valued at 4.3 million krona, but its true value was only 80,000 krona). On the strength of the certificate, the estate agent obtained a bank loan of 1 million krona, partially secured by a mortgage up to 800,000 krona. The loan proved to be unrecoverable due to the eventual bankruptcy of the borrower and the inadequacy of the security which had been given, so the bank sued the valuer for negligence and was awarded compensation. The court recognized that a third party who provides information to a contracting party, knowing that the information will be relied upon by someone else, may be liable in tort for pure economic loss sustained by the relying party, despite the fact that carelessly providing false information does not amount to a crime. From the wording of the official commentary to the Skadeståndslag it was clear that the Act was not intended to hinder appropriate development of liability for pure economic loss beyond the context of criminal law.

131Ultramares Corp’n v. Touche 255 NY 170 (1931) at p. 179, per Cardozo CJ.

regimes and the unlawfulness requirement in the conservative systems – although some of these conservative regimes seek intense ‘lateral’ support to the recoverability of pure economic loss through contract law rules.

However, comparative analysis of European regimes makes clear a further point. Our classification of the systems into liberal, pragmatic and conservative regimes is designed to provide a framework that the reader may use to understand how jurists of a particular country reason their way to solutions. However, these are only façades, starting points, not the end of the journey. Here, our cautionary distinction between exterior appearances and operational interiors plays a capital role. We have seen that the façades are frequently deceptive edifices that conceal a complex theoretical substructure. Indeed, the usual way of approaching legal systems’ notions and rules is strongly affected by what we can call the ‘façade effect’, that is to say, by a (covert or explicit)132 set of assumptions which sometimes drive the observer far away from the actual rules and rationales that one finds at work in the given legal system.

Therefore, without an in-depth factual analysis many of the actual questions raised by the pure economic loss issue are bound to receive either no answer, or only a misleading one.

132 See Sacco, ‘Legal Formants’, at 21–7.

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