- •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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xxxv |
Portugal
Civil Code
Article 70
The law protects individuals against any unlawful offence or threat of offence to his physical or moral entity.
Article 227
Whoever negotiates with another to conclude a contract must, in the preliminary stages as well as during its formation, proceed according to the rules of good faith, on pain of being liable for the damage that may be negligently caused to the other party.
Article 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.
Article 483
(1) Whoever, whether by wilful misconduct (dolus) or by negligence unlawfully infringes the rights of another person or any legal provision intended to safeguard the interests of others must compensate the injured party for damage arising from such violation.
Article 484
Whoever affirms or disseminates a fact capable of prejudicing the credit or good name of any person, private individual or legal person, is responsible for the damage caused.
Article 485
(1)Mere advice, recommendation or information do not confer liability on whoever gives it, even though there may be negligence on their part.
(2)The obligation to compensate exists, however, when the responsibility for damage has been assumed, when there is a legal duty to give advice, recommendation or information and this has been done with negligence or intent to harm, or when the behaviour of the agent constitutes a punishable act.
Article 494
If the liability is based upon negligence compensation may be equitably settled at a lesser amount so as to correspond to the damage caused, as
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long as the degree of culpability of the agent, his financial conditions and those of the injured party and other circumstances justify it.
Article 495
(2)Those who render assistance to the injured party [have a right to compensation] as well as hospitals, doctors or other persons or entities who may have contributed to the treatment or assistance of the victim.
(3)Those who might claim the injured party for alimonies or those to whom the injured party was paying them as a natural obligation [have a right to compensation].
Article 609
Subrogation exercised by one of the creditors profits to all the others.
Decree-Law no. 383/89 of 6 November 1989
Article 8
Damage resulting in death or physical injury and damage in rem different from the defective product are recoverable, where it is normally intended for private use or consumption and the injured party had principally attributed this end to it.
Spain
Civil Code
Article 1103
The responsibility arising from negligence can be claimed in all kinds of obligations; but the Courts can moderate the compensation according to the circumstances of each case.
Article 1111
The creditors, once they have seized the debtor’s assets, can make use of any action or remedy the debtor may have to collect what he owes them, with the only exception of the rights that are strictly personal to the debtor.
Article 1186
Having extinguished the obligation for loss of the asset, the creditor shall have access to all actions against third parties the debtor may be entitled to.
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Article 1902
He who causes damages to another by act or omission, through fault or negligence, shall be obliged to compensate the damage caused.
Auditing of Accounts Act no. 19 of 12 July 1988
Article 11.1
Account auditors shall be directly and jointly and severally liable to the audited companies or entities and to third parties, for damages derived from the unfulfilment of their obligations.
Article 15.1
Civil or criminal responsibility which (auditors) may incur shall be claimed from them according to legal provisions.
Criminal Code
Article 104 of the former Criminal Code (Art. 113 of the current Criminal Code reproduces this exact legal content):
Compensation for material damages and pain and suffering shall not only include those caused to the injured party, but also those derived from criminal activity and caused to his family or to a third party.
Sweden
Tort Liability Act 1972
Chapter 1 § 2
By pure economic loss in this Act is to be understood such economic loss arising without connection with anybody suffering bodily injury or property damage.
Chapter 2 § 1
Anybody who intentionally or negligently causes a personal injury or a damage to things shall compensate it, as far as this Act does not prescribe otherwise.
Chapter 2 § 4
Who causes pure economic loss through the commission of a crime shall compensate it according to what is established in §§ 1–3 concerning personal injury or damage to things.
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The Netherlands
Civil Code
Article 6:98
Compensation can only be claimed insofar as the damage is related to the event giving rise to liability in such a fashion that the damage, also taking into account its nature and that of the liability, can be imputed to the debtor as a result of this event.
Article 6:101
Where circumstances which can be imputed to the injured have contributed to the damage, the obligation to repair is reduced by apportioning the damage between the injured and the injurer in proportion to the degree in which the circumstances which can be imputed to each of them, have contributed to the damage. [. . .]
Article 6:107
(1)If a person suffers physical or mental injury as a result of an event for which another person is liable, that other person is not only obliged to repair the damage of the injured person himself, but also to indemnify a third person for costs [ . . . ] incurred for the benefit of the injured, which the latter, had he incurred them himself, would have been able to claim from that other person.
(2)He who has been held responsible by the third party pursuant to the preceding paragraph can raise the same defences as he would have had against the injured person.
Article 6:109
(1)The judge may reduce the obligation to repair damage if awarding full reparation would lead to clearly unacceptable results in the given circumstances, including the nature of the liability, the legal relationship between the parties, and their respective financial capacities.
(2)The reduction may not exceed the amount for which the debtor has covered his liability by insurance or was obliged to maintain such a cover.
(3)Any stipulation derogating from paragraph 1 is null.
Article 6:162
(1) A person who commits an unlawful act vis-à-vis another person, which can be imputed to him, is obliged to repair the damage suffered by the other person as a consequence of the act.
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(2)Save grounds for justification, the following acts are deemed to be unlawful: the infringement of a subjective right, an act or omission violating a statutory duty, or conduct contrary to the standard of conduct acceptable in society.
(3)An unlawful act can be imputed to its author if it results from his fault or from a cause for which he is answerable according to law or common opinion.
Article 6:163
No obligation to repair damages arises whenever the violated norm does not purport to protect against damage such as that suffered by the injured.
Article 6:179
The possessor of an animal is liable for the damage caused by the animal, unless, pursuant to the preceding section, there would have been no liability if the possessor would have had control over the behaviour of the animal by which the damage was caused.
Article 7:424
If an agent has, in his own name, contracted with a party who does not fulfil his contractual obligations, then this party is also obliged [. . .] to repair the damage suffered by the principal.