486 t h e c o m p a r a t i v e e v i d e n c e : c a s e r e s p o n s e s

The second is expressly established in the law (art. 227 CC); however, the first is not, though it is unanimously accepted.967

The doctrine tends to set these legal figures in the category of ‘obligational relationships without primary duties of performance’ (prestação). In other words, situations where duties of performance have not yet arisen or have already been extinguished, while the parties are still bound by ‘other duties of conduct’ resulting mainly from the principle of good faith.

The existence of fault is necessary.

Sweden and Finland

I. David will most probably not be held liable.

II. Here we are again facing ‘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, which in principle can be recovered from the wrongdoer when it is caused through a crime, according to SkadestL 4:2 (Sweden) and SkadestL 5:1 (Finland), 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. As mentioned earlier, courts have been very restrictive in granting exceptions to the general principle.

In cases of wrongful information given on a non-professional basis, Swedish and Finnish case law kept close to the general principle, and although there are some criticisms from scholars against this restrictive approach, there are no signs of a change in direction in the operative rules.968

Editors’ comparative comments

This is another case in which the solutions, although they substantially agree on the recoverability of the employee’s losses (the exceptions are Sweden and Finland, with a problematic approach taken by Spain), derive from different standpoints and are reached by different legal paths.

England and Scotland treat the case either under the ‘Hedley Byrne duty of care’ rule, or under the perspective grounded on an assumption

967V. Almeida Costa, Direito das Obrigações, 9a Edicão Revista e Aumentada (Almedina, Coimbra, 2001), 304–6, with bibliographic references.

968J. Kleineman, Ren förmögenhetsskada (1987), pp. 513 ff.

of responsibility by the employer, coupled with the reliance placed on it by the employee.

Austria, Germany and Greece – besides a possible recovery grounded on the breach of a statutory duty – award damages to the plaintiff, considering the harm suffered by the latter to be a ‘parasitic’ rather than ‘pure’ economic loss. Indeed, these legal systems ground their solutions (in tort) upon infringement of the employee’s reputation: that is, one of the absolute rights whose protection is traditionally a core aim of tort law systems.969

The French, Belgian and Italian legal systems treat the hypothetical case in terms of loss of a chance, to be understood here as an autonomous tort, as distinguished from cases in which the lost chance is taken into account as a specific head of damages consequent upon another tort.970

969See also our comments to Case 1 (‘Cable I – The Blackout’) and to Case 13 (‘Subcontractor’s Liability’) in fine.

970The latter, as we have just said, is the path followed in the case under review in Austria, Germany and Greece. A further example could be that of a personal injury which prevents the victim from entering a profession: see, e.g. Limoges, 19 octobre 1995, Sem. Jur., 1996, IV, 897.