- •Contents
- •General editors’ preface
- •Preface
- •Contributors
- •Table of legislation
- •Austria
- •Belgium
- •England
- •Finland
- •France
- •Germany
- •Greece
- •Italy
- •Portugal
- •Scotland
- •Spain
- •Sweden
- •The Netherlands
- •Austria
- •Belgium
- •Finland
- •France
- •Germany
- •Greece
- •Italy
- •Portugal
- •Spain
- •Sweden
- •The Netherlands
- •Abbreviations
- •1 The notion of pure economic loss and its setting
- •Introduction
- •Pure vs. consequential economic loss
- •Actor’s state of mind: intention vs. negligence
- •The standard cases: a taxonomy
- •Ricochet loss
- •Transferred loss
- •Closure of public markets, transportation corridors and public infrastructures
- •Present vs. future loss
- •In the scale of human values
- •In historical perspective
- •2 The rule against recovery in negligence for pure economic loss: an historical accident?
- •Introduction
- •Continental law before the nineteenth century
- •The Roman texts
- •The natural law schools
- •The nineteenth and twentieth centuries
- •Germany
- •Before the code
- •England
- •Conclusion
- •3A Pure economic loss: an economic analysis
- •Introduction
- •Basic institutions of the market economy
- •Basic rights
- •Freedom of contract
- •Private property
- •Liability
- •Stable legal environment
- •Stable currency
- •Open markets
- •Procedural guarantees
- •Relationship between public bodies
- •Relationships between public bodies and citizens
- •Externalities, rent seeking and dynamic markets
- •Looking at the cases
- •Conclusion
- •A concise summary
- •The economics of pure economic loss
- •Socially relevant externalities and the optimal scope of liability
- •Pure economic loss as a social cost
- •Pure economic loss: towards an economic restatement
- •In search of comparable categories: a hypothesis
- •Recasting the economic loss rule
- •Practical problems in the application of the economic loss rule
- •The problem of foreseeability of pure economic losses
- •Problems of derivative and open-ended litigation
- •Conclusion
- •4 American tort law and the (supposed) economic loss rule
- •Introduction: the relative unimportance of an exclusionary rule in the United States
- •Products liability as an exception
- •Rationales of the rule
- •Contexts and cases
- •Conclusion
- •5 The liability regimes of Europe – their façades and interiors
- •Introduction
- •Two alternative formulas: from façades to operative rules
- •General vs. specific characteristics
- •The liberal, pragmatic and conservative regimes of tort
- •The liberal regimes of France, Belgium, Italy, Spain and Greece
- •France – an enigmatic liberalism
- •In the Belgian looking glass
- •Italy’s recent revolution
- •The Spanish countercurrents
- •Greece’s liberal credentials
- •The pragmatic regimes of England, Scotland and the Netherlands
- •England’s cautious and pragmatic judges
- •Scotland: an ambiguous pragmatism
- •A middle path in the Netherlands
- •The conservative regimes of Germany, Austria, Portugal, Sweden and Finland
- •Germany: narrow in tort but wide in contract
- •The transformed general clause
- •The resort to contractual actions
- •Portugal’s continuous resort to German sources
- •Sweden and Finland: nulla injuria sine lege?
- •Conclusion
- •6 Preliminary remarks on methodology
- •Aim and method of the study
- •The common core approach
- •The three-level response
- •7 The case studies
- •National Reporters and the Editors
- •Comparative Commentary
- •Mauro Bussani and Vernon Valentine Palmer
- •Case 1: cable I – the blackout
- •Editors’ comparative comments
- •Case 2: cable II – the factory shutdown
- •Editors’ comparative comments
- •Case 3: cable III – the day-to-day workers
- •Editors’ comparative comments
- •Case 4: convalescing employee
- •Editors’ comparative comments
- •Case 5: requiem for an Italian all star
- •Editors’ comparative comments
- •Case 6: the infected cow
- •Editors’ comparative comments
- •Case 7: the careless architect
- •Editors’ comparative comments
- •Case 8: the cancelled cruise
- •Editors’ comparative comments
- •Case 9: fire in the projection booth
- •Case 10: the dutiful wife
- •Editors’ comparative comments
- •Case 11: a maestro’s mistake
- •Editors’ comparative comments
- •Case 12: double sale
- •Editors’ comparative comments
- •Case 13: subcontractor’s liability
- •Editors’ comparative comments
- •Case 14: poor legal services
- •Editors’ comparative comments
- •Editors’ comparative comments
- •Case 16: truck blocking entrance to business premises
- •Editors’ comparative comments
- •Case 17: auditor’s liability
- •Editors’ comparative comments
- •Case 18: wrongful job reference
- •Editors’ comparative comments
- •Case 19: breach of promise
- •Editors’ comparative comments
- •Case 20: an anonymous telephone call
- •Editors’ comparative comments
- •8 Summary and survey of the cases and results
- •Introduction
- •Reappraising the divides
- •Certainty vs. uncertainty
- •9 General conclusions of the study
- •Irrelevance of legal families
- •Absence of methodological common core
- •Awareness of the time factor
- •The substantive common core
- •Consequential loss
- •Intentional harm
- •Key areas of selective protection
- •Summary on the ‘limited common core’
- •Introduction
- •Pure economic loss astride private law frontiers
- •The place of pure economic loss within different possible frames of a tort law codification
- •Possible basic scenarios
- •A code imposing liability on the ground of a rigid typecast set of provisions
- •A tort law codification adopting a ‘general clause’: the selection of recoverable losses as the crucial choice
- •A destiny to be interpreted
- •Bibliography
- •Index
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Article 2279
As to movable property, possession is equivalent to title.
Nevertheless, one who has lost or from whom was stolen a thing may claim it during three years, counting from the day of the loss or theft, against the one in whose hands he finds it, saving to that one his recourse against him from whom he holds it.
Germany
Civil Code
Article 823
(1)A person who, wilfully or negligently, unlawfully injures the life, body, health, freedom, property or other right of another is bound to compensate him for any damages arising therefrom.
(2)The same obligation is placed upon a person who infringes a statute intended for the protection of others. If, according to the provisions of the statute, an infringement is possible even without fault, the duty to make compensation arises only in the event of fault.
Article 824
(1)A person who declares or publishes, contrary to the truth, a statement which is likely to endanger the credit of another, or to injure his earnings or prosperity in any manner, shall compensate the other for any damage arising therefrom, even if he does not know of its untruth, but should know of it.
(2)A person who makes a communication, the untruth of which is unknown to him, does not thereby render himself liable to make compensation, if he or the receiver of the communication has a lawful interest in it.
Article 825
A person who by cunning, by threats, or by the abuse of a relationship of dependence, induces a woman to permit extra-marital cohabitation, is bound to compensate her for any damages arising therefrom.
Article 826
A person who wilfully causes damage to another in a manner contrary to public policy is bound to compensate the other for the damage.
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xxxi |
Greece
Civil Code
Article 57
A person who has suffered an unlawful offence to his personality has the right to claim the cessation of such offence as also the non-recurrence thereof in the future. If the offence was directed against the personality of a deceased person the right referred to above shall belong to the spouse the descendants the ascendants the brothers and sisters and the legatees appointed by testament. Tortious liability for damages is not excluded when true claim is based on the provision governing unlawful acts.
Article 59
In the cases referred to in the two preceding sections the Court may at the request of the person harmed and having regard to the nature of the offence order the person responsible to furnish reparation of the moral prejudice suffered by the person offended. Such reparation may consist of the payment of a sum of money of a publication or any other appropriate measure in the circumstances.
Article 197
In the course of negotiations for the conclusion of a contract the parties shall be reciprocally bound to adopt the conduct which is dictated by good faith and business usages.
Article 198
A person who in the course of negotiations for the conclusion of a contract has through his fault caused prejudice to the other party shall be liable for compensation even if the contract has not been concluded.
For the prescription of such claim shall be applicable by analogy the provisions governing prescription in the matter of claims arising from unlawful acts.
Article 281
The exercise of a right shall be prohibited if such exercise obviously exceeds the limits imposed by good faith or morality or by the social or economic purpose of the right.
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Article 288
A debtor shall be bound to perform the undertaking in accordance with the requirements of good faith taking into consideration business usages.
Article 298
Damages shall comprise the decrease in the existing patrimonium of the creditor (positive damage) as well as loss of profit. Such profit shall be that which can be reasonably anticipated in the usual course of things or by reference to the special circumstances having regard to the preparatory steps taken.
Article 335
If at the time of furnishing of the performance such furnishing is in whole or in part impossible for reasons either of a general nature or relating to the debtor the latter shall be bound to compensate the prejudice resulting therefrom for the creditor.
Article 362
A person who promised a performance which at the time of the conclusion of the contract is not possible by reason either of general considerations or of considerations relating to the promissor shall be liable to compensate the damage caused to the creditor by non-performance. The provisions of section 337 are also applicable in this case by analogy.
Article 914
A person who through his fault has caused in a manner contrary to the law prejudice to another shall be liable for compensation.
Article 919
A person who has intentionally caused prejudice to another in a manner contrary to morality shall be liable for damages.
Article 929
In case of harm to the body or health of a person the compensation shall include in addition to medical expenses and the prejudice hitherto caused everything of which the victim shall be deprived in the future or the further burden he shall bear by reason of an increase in his expenses. An obligation to compensate shall also arise in regard to a third party who being entitled by the law to rely on the performance of a service by the victim has been deprived of such service.
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Italy
Civil Code
Article 1153
He to whom movable property is conveyed by one who is not the owner, acquires full ownership by means of possession, provided that he be in good faith at the moment of consignment and there be an instrument or transaction capable of transferring ownership.
Ownership is acquired free of rights of others in the thing, if they do not appear in the instrument of transaction and the acquirer is in good faith.
Article 1176
In performing the obligation the debtor shall observe the diligence of a good pater familias.
In the performance of obligations inherent in the exercise of a professional activity, diligence shall be evaluated with respect to the nature of that activity.
Article 1218
The debtor who does not exactly render due performance is liable for damages unless he proves that the non-performance or delay was due to impossibility of performance for a cause not imputable to him.
Article 1223
The measure of damages arising from non-performance or delay shall include the loss sustained by the creditor and the lost profits insofar as they are a direct and immediate consequence of the non-performance or delay.
Article 1226
If damages cannot be proven in their exact amount, they are equitably liquidated by the court.
Article 1227
When the negligent behaviour by the creditor has contributed to cause the damage, compensation will be reduced according to the degree of negligence and the actual consequence suffered therefrom.
Article 1256
An obligation is extinguished when its performance becomes impossible for a cause not imputable to the debtor.
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If the impossibility is only temporary the debtor is not liable for delay in performance as long as it continues to exist. However, the obligation is extinguished if the impossibility continues until, depending on the source of the obligation or the nature of its subject matter, the debtor can no longer be held bound to perform the obligation or the creditor is no longer interested in the performance.
Article 1337
The parties, in the conduct of negotiations and the formation of the contract, shall conduct themselves according to good faith.
Article 1483
If the buyer suffers total eviction from the thing as a result of rights enforced in it by a third person, the seller is bound to compensate him for damage according to Article 1479.
Article 2043
Any fraudulent, malicious, or negligent act that causes an unjustified injury to another obliges the person who has committed the act to pay damages.
Article 2050
Whoever causes injury to another in the performance of an activity dangerous by its nature or by reason of the instrumentalities employed, is liable for damages, unless he proves that he has taken all suitable measures to avoid the injury.
Article 2059
Non-economic damages are recoverable only in cases where a statute so provides.
Article 2644
(2)After first transcription, any successive transcription or registration of titles against the author cannot be enforced, even if the title had been acquired at a prior date.
Decreto Legislativo 58/1998
Article 164
The rule of article 2407, section 1, civil code, applies to account societies. The auditor and its employees are jointly liable with the auditing company, towards the client company or third parties, for damages due
to their mistakes and torts.