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Case 11: a maestro’s mistake

Case

Giorgio was about to buy a painting of considerable value by the famous artist Quirinalis from Franco. Before paying for the picture, however, Giorgio visited Quirinalis who (in the course of conversation) assured him that the work was authentic. Relying on this expertise, Giorgio then bought the picture. Sometime later, expert examination established without a shadow of doubt that the painting was skilled forgery. Unable to contact Franco, Giorgio has decided to sue Quirinalis.

France

I. Giorgio will probably be able to recover his pure economic loss under article 1382 of the Civil Code if he can prove Quirinalis’s fault in failing to detect the forgery of his own work.

II. Many cases and an abundant doctrine address the hypothesis of a disappointed buyer or seller of a picture suing the other party to the contract, but none deal with the tort law situation of a disappointed buyer suing a third-party expert, much less an artist consulted as an expert on his own oeuvre.

Giorgio can sue Quirinalis under article 1382, and will succeed if he proves Quirinalis’s fault, the damage Giorgio himself incurred, and the causal link between the two. At first glance it may be thought that Quirinalis obviously committed a fault, whether intentional or not, in not recognizing that the painting was a fake. He caused Giorgio to buy the painting at a price certainly higher than the price of a fake. Giorgio’s damage is thus the difference between the value of the forgery he owns and the price he paid for the supposed Quirinalis’s painting. Giorgio has also to prove how Quirinalis’s assertion of authenticity really induced him to buy the painting, and that he had not already made up his mind before talking to Quirinalis. As always, the amount of proof to be brought and the final amount of damages all lie in the discretion of the juge du fond.

Nevertheless, on second thought the question of Quirinalis’s fault in this case is troubling and may not be so self-evident. Perhaps an artist (like any other person for that matter) is not a good judge in his own case. His realm may be the creative and he does not necessarily possess the analytical and technical skills for judging the provenance of art. Since Quirinalis may have had no training or experience in detecting

skilful forgeries, he may not be held to the standards of an art expert and might not be considered at fault in these circumstances.

French judges would probably rely on a court-appointed expert from the art world to give an opinion as to the relative ease or difficulty for an artist to discern the authenticity of his own work.

III. In French tort law the distinction between intentional and nonintentional fault is not officially relevant to the scope of the damage award. The various degrees of fault are treated the same way for purposes of triggering the réparation intégrale to which the injured party is entitled. The rule is that all forms of fault oblige their author to repair entirely the damage he has caused. It may be true (though it seems impossible to verify it) that the judges tend to proportion the amount of the damages to the gravity of the fault, but it is certainly true they could not admit it without opening their judgment to being quashed by the Cour de Cassation. Accordingly, the question of fault is apparently the question of its existence, not its gradations, and this has an all-or-nothing effect upon the claim against Quirinalis for pure economic loss.

Belgium

I. Giorgio has no claim against Quirinalis unless he intentionally misled Giorgio or he should have known that in acting as he did, he would cause him a loss.

II. Contract claim: Giorgio will normally have a contract claim against Franco, the seller with whom he had a contract. Subject to certain conditions, Giorgio could obtain the nullity of the contract based on mistake or on fraud (if Quirinalis acted on Franco’s request) or he might obtain an indemnity covering the damage suffered.

Tort claim: since there is no contract between Giorgio and Quirinalis, the basis for a claim against Quirinalis will be article 1382 CC:

Any act whatever of man which causes damage to another obliges him by whose fault it occurred to make reparation.

Quirinalis will only be liable if Giorgio can prove fault, his damage and the causal link between the fault and damage.

The first issue is to prove the fault of Quirinalis. According to Belgian tort law, a fault in the sense of article 1382 CC is a violation of law or is a type of behaviour that the ‘bonus pater familias’ would not have engaged in under the circumstances.501

501J. L. Fagnart and M. Denève, ‘La responsabilité civile (1976–1984)’, JT, 1986, no. 41, p. 297.

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When the behaviour deviates from that of ‘a normal person’, it constitutes a fault, provided the damage was foreseeable.502 If, in the course of conversation, Quirinalis assured Giorgio that the work was authentic without knowing that Giorgio was about to buy the painting, it would be very difficult to prove Quirinalis’s fault.

The second issue concerns the question of causation. It may be difficult to prove that Giorgio bought the painting because Quirinalis assured him it was authentic. If Giorgio would have bought the painting anyway, there is no causal link.

The last issue for Giorgio to prove is that he suffered damage. This would not be the case if Franco had refused to guarantee the painting’s authenticity in their sale agreement.

The only possibility for Giorgio to obtain reparation from Quirinalis is to prove that Quirinalis knew that the painting was not authentic and deliberately lied to Giorgio in order to induce him to buy it from Franco.

Italy

I. Giorgio can sue Quirinalis and recover damages on the basis of article 2043 cc.

II. Here, the false information given by Quirinalis caused a loss in Giorgio’s ‘patrimonio’, which is the set of all assets and properties belonging to an individual. According to the Supreme Court decision in Failla v. Paskwer (ved. De Chirico),503 everybody should have a ‘right to the integrity of the personal asset (patrimonio)’. Failla’s right was violated because he wasted his money in purchasing a mere copy rather than the authentic artwork he wished to obtain. The Supreme Court also stated that Failla had a right to freely decide to buy or not, and that the misinformation he received from De Chirico violated his right to a free choice.

III. Under Italian law, a third party in good faith who ‘interferes’ with another party’s contract is not considered liable per se. This is the basic rule, governing interference with contractual relations,504 which was applied also by the Supreme Court in Failla. In this ruling, though, the liability threshold has been overcome by the finding of a gross negligence

502R. O. Dalcq and G. Schamps, ‘La responsabilité civile délictuelle et quasi-délictuelle, examen de jurisprudence (1987–1993)’, (1995), RCJB 536, no. 6.

503Cass., 24.5.1982, no. 2765, FI, 1982, I, 2864; in GC 1982, I, 1745, noted by A. Di Majo, ‘Ingiustizia del danno e diritti non nominati’, A. Di Majo, ‘Il problema del danno al patrimonio’, RDC, 1986, 298.

504Trib. Monza, 15.2.1996; Trib. Trieste, 13.7.1994.

in the conduct of the third party (the painter De Chirico) who was aware of the existence of the agreement between the plaintiff and the other party.

Legal scholarship505 endorses the same solution, sponsoring plaintiff’s extra-contractual remedy for those cases of third parties’ tortious interference in contractual relations where third party’s conduct is proved to be, at least, grossly negligent.

Spain

I. There is neither case law nor specific doctrinal comments on this matter.

II. We believe that the most likely solution given by a Spanish court would be to deny that Quirinalis’s behaviour could give rise to an action against him in favour of Giorgio: it seems clear that in the course of an informal conversation there is no duty of care. The idea of a ‘duty of care’ is not used in Spanish case law, nor by Spanish legal scholars.506 Consequently, the most likely outcome would be to say that Quirinalis’s behaviour was not negligent because he was only obligated to give an honest opinion. It goes without saying that the solution to the question raised in this case would be a definite yes if Quirinalis had acted in bad faith.

Greece

I. In principle Giorgio has no chance of recovering against Quirinalis, unless the latter could be considered as contractually bound to examine the authenticity of the picture or unless he acted deliberately for an immoral purpose, which seems rather improbable.

II. As article 729 CC lays down, if a person has given advice or made a recommendation, he will not be liable for any loss resulting from it, unless he assumed responsibility by contract or acted fraudulently. It is thus e contrario clear that, if Quirinalis had already realised that the picture was a forgery, he would be liable as against Giorgio (according

505See Monateri, La responsabilità, p. 628; F. Ziccardi, L’induzione all’inadempimento (Milano, 1979), p. 58; G. Visintini, I fatti illeciti, I, L’ingiustizia del danno (Padova, 1987);

G. Ponzanelli, ‘Il Tort of interference nei rapporti contrattuali: le esperienze nordamericana e italiana a confronto’ (1989), 6 Q 69.

506F. Pantaleón, La responsabilidad civil de los auditores: extensión, limitación, prescripción

(1996), pp. 114–16, has recently attempted to introduce it.

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to art. 919 CC as well, insofar as he acted deliberately and against good morals). Nevertheless, it is Giorgio who has the burden of proving Quirinalis’s wilful conduct, otherwise, he has no chance of success in suing Quirinalis.507 The reason is that a possible error on Quirinalis’s part constitutes neither an unlawful act, nor a breach of contract: in the course of a simple conversation with Giorgio, he did not have an intention of creating legal relations, i.e. the intention of binding himself.508 The Greek Civil Supreme Court is very careful in upholding an advisor’s liability under article 729 CC. According to its decisions,509 liability for advice or opinion without wilful conduct may only be imposed if the opinion is given as a counter-performance or if the advice serves the advisor’s own financial interests. In such a case, the Supreme Court confirms an intention to bind oneself. Consequently the answer given by the Greek courts here would probably be negative.

A different solution could be proposed only by virtue of good faith and only very exceptionally. More particularly: Quirinalis might be considered as contractually bound, even without his own intention, if his declaration to Giorgio had objectively the meaning that he bound himself contractually, as for example, in case the opinion was given as counterperformance (see above). In this case Quirinalis would, of course, be in error as to his declaration according to article 140 CC, but nevertheless according to article 144, no. 2, he might not invoke his error in order to cause the annulment of the contract, as far as this would be in conflict with good faith.

Quirinalis might be liable only if his negligence in detecting the forgery was not considered this time simply as a fault, but as unlawful behaviour. This latter view of negligence (i.e., as an unlawful behaviour)510 is grounded on articles 281 and 288 CC, which ordain that everyone should behave as the business customs require.

III. The line between contractual undertakings and gentlemen’s agreements remain unclear. Civil law theories (e.g. the theory of de facto contractual relations), as well as methodology, general theory and philosophy of law, struggle to solve adequately the famous general problem of the limitation of ‘area-free-of-law’ (Rechtsfreierraum), where no liability may arise.

507See Karassis in Georgiades Stathopoulos, Civil Code art. 729 no. 5.

508Ibid., no. 2.

509AP55/1968 NoB 17, 161.

510See this view in M. Stathopoulos, Contract Law in Hellas (1995), no. 256. AP 81/1991 NoB 40, 715; EfAth 7453/1988 EllDni 31, 848.

England

I. Giorgio has a valid claim in tort against Quirinalis, provided it is established that both were aware of the seriousness of their exchanges concerning the painting, i.e. that Quirinalis knew that the reason for Giorgio’s request of information was the purchase of the painting.

II. Giorgio will be able to sue Quirinalis under the principle of Hedley Byrne v. Heller,511 for negligent advice.512

Hedley Byrne is generally considered as capable of allowing claims for economic harm due to negligent advice or information, provided such claims are capable of submission to its rule.513 The rule states that a person reasonably relying on the advice or information of another who possesses, or claims to possess, the necessary skills, can recover economic loss caused by such advice or information being negligently wrong or inaccurate. The House of Lords has recently confirmed and somewhat extended Hedley Byrne in White v. Jones.514 The special conditions of liability in English law for economic loss caused by negligent advice or information seem now to be as follows.

The duty of care is founded on the existence of ‘close proximity’ between plaintiff and defendant, a concept that seems to mean that the defendant knew, or ought to have known, that the plaintiff, as an individual identified to him and not merely as a member of a class of persons, would rely on his advice or information. Some cases demand that the defendant intended the plaintiff to rely on his advice or information;515 there is in this writer’s opinion no doubt that this close proximity exists in cases such as the present, where the defendant is the painter whose style was faked in the forged painting, choosing freely to advise the plaintiff, albeit without entering into a contractual relationship with him.516

‘Reasonable reliance’ of the plaintiff on the defendant’s advice: this is, again, probable in cases such as the present, where the defendant should clearly be seen as being in a position to offer an expert opinion on a painting alleged to be one of his own. The only reservation could be: was, on the facts, the defendant aware of the purpose for which advice was sought?517

513See T. Weir, A Casebook on Tort (9th edn, Sweet & Maxwell, London, 2000), p. 67.

514[1995] 2 AC 207 (HL).

515See Galoo Ltd v. Bright Grahame Murray [1995] 1 All ER 16 (CA).

516See for a survey of the professions Weir, Casebook, pp. 84 ff.

517Galoo Ltd v. Bright Grahame Murray [1995] 1 All ER 16 (CA).

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III. Liability for negligent advice or information has developed in the English law of negligence differently from that for acts or omissions. The main reason is that in a great number of cases of wrongful advice or information, the parties are so close, working in a business relationship and, but for the absence of either consideration or privity, there would have been a claim in contract. The courts do not wish (in such cases of close relationship and reliance) the risk of professional fault to be carried by the innocent party. But the limits of this liability are narrowly defined and closely policed by the courts, who have repeatedly denied recovery of losses suffered by more than one individual, not in personal contact with the defendant.518

Scotland

I. Giorgio should at least be able to bring an action but whether he is successful depends very much on the particular facts of the case, the mere summary of which is given here. As such, it is not enough for one to say with greater certainty what the outcome would be. He does have an arguable case.

II. We are dealing here with negligent advice given, or a careless misrepresentation made, by Quirinalis as to the provenance of a work which, uniquely among men, he should have been in a position to establish. We are once more dealing with pure economic loss but, in an exception to the general rule, it was established in Hedley Byrne v. Heller519 that in particular circumstances a duty of care exists not to make negligent statements which might be relied upon by others causing them pure economic loss. Rather than a duty of care being limited to fiduciary relationships, Lord Reid stated the following:

I can see no logical stopping place short of all those relationships where it is plain that the party seeking information or advice was trusting the other to exercise such a degree of care as the circumstances required, where it was reasonable for him to do that, and where the other gave the information or advice where he knew or ought to have known that the enquirer was relying on him . . . A reasonable man, knowing that he was being trusted or that his skill and judgment were being relied on, would, I think, have three courses open to him. He could keep silent or decline to give the information or advice sought: or he could give an answer with a clear qualification that he accepted

518More in E. K. Banakas, Civil Liability for Pure Economic Loss: A Comparative Study (Hellenic Institute for International and Foreign Law, Athens, 1989), chs. 1 and 2.

519[1963] 2 All ER 575; discussed in Case 7 (‘The Careless Architect’) above.

the artist was not being paid for his expertise, but then neither are employers giving references for former employees or banks answering enquiries about customers. As Lord Reid observed in Hedley, he could have kept silent or, at least, qualified his observations to protect himself. Despite all the variables, what is without doubt is that if an artist assures a person that a work is his in circumstances where he is in a position to give an authoritative assessment, then any apprehensions one might have in spending a vast sum purchasing a painting on grounds of a questionable provenance would be overcome. In the right circumstances the court may be convinced that this is another case suitable for the type of incremental development by analogy now favoured by the courts, and hold that Quirinalis had a duty of care to Giorgio which was breached.

III. Lord Pearce in Hedley Byrne stated the following:

How wide the sphere of the duty of care in negligence is to be laid depends ultimately on the courts’ assessment of the demands of society for protection from the carelessness of others. Economic protection has lagged behind protection in physical matters where there is injury to person and property. It may be that the size and the width of the range of possible claims has acted as a deterrent to extension of economic protection.524

Considerations such as these would determine whether Quirinalis would be found liable.

The Netherlands

I. Giorgio and Quirinalis do not have a contractual relationship; Giorgio’s claim in tort will not succeed.

II. The reassuring information given by the artist led the buyer to believe that the painting was genuine. As far as liability for inaccurate information is concerned, Dutch case law has found that two tests are decisive.525 First, it must be ascertained whether the person giving the information had (constructive) knowledge of the purpose for which the information would be used. This first test has been used in liability cases involving accountants, banks and notaries vis-à-vis third parties (i.e. other than their direct clients).526

524[1964] AC 465 at pp. 536–537.

525See, e.g., J. M. Smits, ‘Aansprakelijkheid voor aan derden verschafte informatie; enige dogmatische en praktische kanttekeningen bij derden-aansprakelijkheid’, in: R. P. J. L. Tjittes and M. A. Blom, Bank & aansprakelijkheid (Zwolle, 1996), p. 91 ff.

526See, e.g., HR 10.12.1993, NJ 1994, no. 667. Compare Smits ‘Aansprakelijkheid’, at p. 98.

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Secondly, it must be established whether a reasonable person in similar circumstances would have acted upon the information, i.e. whether he would have taken the information seriously and would have justifiably relied on it. This second test is commonly used in cases on misrepresentation and the reliance on statements made in the course of closing contracts. It can be used in tort law as well.

In my view, a third factor must also be taken into consideration: whether there was a special relationship between the artist and the buyer, obliging the artist to verify the information. Of course, this third factor is of eminent importance. Does an artist being interviewed by a prospective buyer have a duty to this buyer to verify, to the best of his ability, the authenticity of a certain painting? If the assumption is correct that the artist had reason to think the painting real, and there were no counter-indications compelling him to question its authenticity, I do not believe he has a duty to the buyer to submit the painting to a (thorough) examination.

This duty might well arise if the buyer explicitly asks for the expert opinion of the artist. In that case, the artist might be under the obligation to verify his beliefs. However, this was not the actual situation; the buyer asked about the painting at odd moments in the course of normal conversation.

Germany

I. Giorgio’s chance of success is small. He probably has no claim against Quirinalis, neither in tort nor in contract. But this result is not free from doubt.

II. Tort claims: Giorgio has no claim under § 823 (1) BGB because Quirinalis did not violate any of his absolute rights. Instead, Giorgio’s loss is purely economic.

Quirinalis would be liable in tort nonetheless if he acted wilfully and caused ‘damage in a manner contrary to public policy’ (§ 826 BGB). In that case, Giorgio could recover even pure economic loss.

Contract claims:

Quirinalis may be liable to Giorgio because he breached precontractual duties, arising from culpa in contrahendo, which he may have had even as a third party. In 2002, the BGB was amended and now codifies the principle of culpa in contrahendo, including the liability of third parties for violation of pre-contractual duties. In particular § 311 (2) and

(3) now provide:

(2)An obligational relationship imposing duties according to § 241 (2)527 also arises from:

1.the initiation of contract negotiations,

2.[not applicable]

3.similar business contacts.

(3)An obligational relationship imposing duties according to § 241 (2) can also be created vis-à-vis persons who are not intended themselves to become parties to the contract. Such an obligational relationship is created particularly if the third party claims a special degree of trust and thus considerably influences the negotiations or the conclusion of the contract.528

Thus, the question then becomes who exactly may be liable for culpa in contrahendo. It is generally recognized today that besides the prospective partners in contract themselves, an agent may be liable as well if he has a particular economic interest in the contract, or if he claims particular expertise and trust.529 The reason is that in such a situation, the other party will be influenced by, and rely on, the agent rather than the principal. Thus, had Quirinalis been Franco’s agent there would be little doubt – in light of Quirinalis’s special expertise – about his liability to Giorgio.

The problem is that Quirinalis was not Franco’s agent. Yet, the Bundesgerichtshof has occasionally held third parties liable for culpa in contrahendo even though they were not agents. The basis for their liability was the special trust that they enjoyed, the particular expertise they proffered, or the strong influence on the making or execution of the contract they exercised.530 These cases come perilously close to the present one although they are distinguishable on various grounds, the explanation of which would require a dissertation in its own right. Suffice it to say that the defendants who were not agents of one party but still held liable to the other for culpa in contrahendo either had an economic interest in the contract, or were somehow closely involved in its making or execution.

527§ 241 (2) provides: ‘An obligational relationship may, according to its content, impose a duty on either party to be considerate of the rights and interests of the other party.’

528The basic liability provision for breach of any duties arising within obligational relationships is now § 280 (1) BGB.

529The agent is then known as a Sachwalter which roughly means attorney (though obviously not attorney-at-law); see BGHZ 14, 313, at 318 (1954); BGH NJW-RR 1989, 110, at 111–12; D. Medicus, Bürgerliches Recht (18th edn, 1999) Rd.-Nr. 200–200a; O. Palandt, Bürgerliches Gesetzbuch (Beck, Munich, 2000), 675 BGB Rd.-Nr. 6 and § 276 BGB Rd.-Nr. 97.

530BGHZ 56, 81–82 (1971); BGHZ 70, 337 (1977).

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In the present case, however, it seems that Quirinalis had neither an economic interest nor anything at all to do with the contract between Franco and Giorgio. Thus, Quirinalis would be held liable based solely on his particular expertise. There is no support in either case law or literature for such a result. It seems that it would also violate § 675 (2) BGB and simply go too far.531

III. The ultimate question is whether Quirinalis should be considered to be within the purview of the contractual relationship between Franco and Giorgio – in which case he may be liable to Giorgio for culpa in contrahendo – or completely outside of it, in which case his liability could only rest in tort.

Ultimately, it is not entirely clear exactly where the limits of thirdparty liability for culpa in contrahendo are located. The Bundesgerichtshof has been criticized for having pushed these limits too far already.532

If Quirinalis acted wilfully, he would be liable in tort in any event, and if he was merely negligent, holding him liable for giving a gratuitous opinion without apparent economic interest would be questionable. German courts are not likely to make this argument openly, but they are sure to be influenced by it nonetheless.

Austria

I.Giorgio has a claim against Quirinalis under article 1300 ABGB.

II. The question is whether the claim is based on contract or culpa in contrahendo. Article 1300 ABGB holds an expert liable ‘when he gives, for a consideration, negligently bad advice in matters of his art or science’. It is not clear what the notion ‘for a consideration’ really means.

In a recent decision, the Austrian OGH held an investment consultant liable for the financial advice that he gave to a woman who thereupon invested her money into an account opened by the main defendant. This defendant went bankrupt. Although the investment consultant – the second defendant in the case – had not charged a fee for his recommendation, the OGH obliged him to pay for the loss the woman had suffered because he ‘expected a commission from the first defendant’.533 Today,

531See W. Fikentscher, Lehrbuch des Schuldrechts (9th edn, Walter de Gruyter, Berlin, New York, 1977) ss. 320–1 (Rd.-Nr. 523) § 675 (2), reads as follows: ‘A person who gives advice or a recommendation to another is not bound to compensate for any damage arising from following the advice or the recommendation, without prejudice to his responsibility resulting from contract, delict, or other statutory provisions.’

532D. Medicus, Bürgerliches Recht (1999), Rd.-Nr. 200b.

533See OGH JBl 1985, 38.

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the rule of non-liability for information (established in no. 1, art. 485 CC), even for negligence as established in article 485 no. 2, would have to be confirmed.

But, to judge from the experience of everyday life, this is not usually the intention of the parties. With respect to contracts, Portuguese law expressly requires the so-called ‘awareness of declaration’.536 With this, the possibility of resolving problems of liability for statements by accepting the existence of contracts for advice or information concluded by tacit declaration (as happens in Germany) is removed.

As there is no unlawful act under the terms of article 483, no. 1, there remains recourse to the theory of abuse of the law. On this level, we do not feel that its application in this case would raise major questions on the part of either doctrine or case law.

III. As stated in Case 5 (‘Requiem for an Italian All Star’), section III, there is no specific provision concerning the abuse of law in matters of tort. This is why we are arguing that there should be recourse to the provision contained in the general part of the Civil Code,537 which is restricted to requiring a ‘manifest abuse’ of the limits imposed by the ‘good faith’ or ‘boni mores’ (or by the ‘economic or social goal’ of the right).

Whenever we are faced with an act that is contrary to boni mores, if the agent has foreseen the possibility of damage and accepts it accordingly (dolus eventualis), it seems that an abuse of law should be affirmed for the purposes of civil liability. But the letter of the law lets us go further, when this is justified, foregoing the proof of malicious damage: that is, serious or gross negligence would be enough.538

536Article 246: ‘The declaration is without any effect if the declarant is unaware that he is making a transactional declaration or was coerced by physical force to issue it; but, if lack of awareness of the declaration was through fault, the declarant is obliged to compensate the declaree’ (declaratário).

537Some authors do not think there should be recourse to the theory of abuse of law in the case where the issue is a simple one of generic freedom to act: the ‘abuse’ would presume the existence of a law that was abused: e.g. M. A. Carneiro Da Frada, Uma ‘Terceira Via’ no Direito da Responsabilidade Civil? (Almedina, Coimbra, 1997), pp. 61–3. But then the existence of an unwritten principle of law of ‘generic prohibition of injurious conduct contrary to good practice’ (at p. 63) is unnecessary when we have a provision which can give direct support; nor does that viewpoint harmonize with the perspective of the author of the preparatory work: A. Vaz Serra, ‘O Abuso do Direito (em Matéria de Responsabilidade Civil)’, Boletim do Ministério da Justiça, 85, 243, n. 41.

538J. Sinde Monteiro, Responsabilidade por Conselhos, Recomendações ou Informações

(Almedina, Coimbra, 1990), pp. 545 f.

For the case in the questionnaire, it could be discussed whether an appeal to good faith or boni mores should be made. This is because good faith presupposes, in principle, a special relationship539 and in the case under discussion there seems to exist only a qualified social contact.540

Sweden and Finland

I. It should be possible, but far from certain, for Giorgio to obtain compensation.

II. We are here facing another very good example of ‘pure economic loss’ in the Swedish/Finnish meaning, i.e. an economic loss arising without connection with anybody suffering personal injury or damage to things. According to the statutory rule in SkadestL 4:2 (Sweden) and SkadestL 5:1 (Finland), this is in principle to be compensated when it is consequent upon a criminal behaviour, although the text and the preparatory works of the Tort Liability Acts 1972 and 1974 do not completely bar compensation should the courts find strong reasons for it. Courts have been very restrictive in granting exceptions to the general principle.

In a case such as this, it is possible to draw an analogy with one of the leading cases concerning liability for pure economic loss in the absence of a crime, i.e. NJA 1987 s. 693, where the Supreme Court affirmed the liability of a real estate evaluator who negligently stated the value of a real estate for the losses caused to a bank which, on the basis of the certificate, gave a loan to the real estate owner, who later went bankrupt.

Some scholars advocate the possibility of according compensation if the wrongful information is due to gross negligence (and a fortiori if it is intentional, although still outside the limits of criminal law). They criticize the fact that information and advice, even on commercial matters, provided within a relation pertaining to private life enjoy what has been called a ‘torts law immunity’.541 However, the idea that such immunity could be set aside when the wrong information is provided intentionally or with gross negligence has never been tested in court.

The same is true for the theory specially advanced by the leading scholar in the field of pure economic loss, who wants to weigh the existence of factors which induced plaintiff to strongly rely on the

539A. Menezes Cordeiro, Da Boa Fé no Direito Civil, vol. II (Coimbra, 1984), p. 1223.

540Cf. Fikentscher, Schuldrechts, § 27 I, and D. Medicus, Schuldrecht I, Allgemeine Teil (9th edn, Beck, Munchen, 1996), § 16 II.

541J. Kleineman, Ren förmögenhetsskada (1987), p. 513.