- •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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II. Richard has no claim in torts since we are faced with a ‘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 only when it is caused through a crime, on the basis of 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 this case, a claim in contract is not possible, because of the lack of an established contractual relationship.
One way which might be open is of course culpa in contrahendo, which however has a rather vague basis in Swedish and Finnish law. The Swedish Supreme Court (NJA 1990 s. 24) tends to grant compensation for the consequences of negligent behaviour in negotiations up to the amount needed to restore the aggrieved party to the same economical position in which he would have been at the time before the negligent behaviour occurred. In principle, Richard should be entitled to compensation for costs if Sam has negligently given him reason to ‘rely’ on his words. The fact that the transaction concerns a real estate sale is a further obstacle for the application of culpa in contrahendo, since some scholars advocate that granting compensation on this basis would conflict with the form requirements proper to real estate sales. In Finland, the Land Act 19951025 prescribes that when two parties agree on a real estate sale without formalizing it, the party which subsequently refuses to complete the sale is bound to compensate the costs incurred by the prospective seller for ‘advertising, becoming acquainted with the estate and for other needed interventions in connection with the negotiations’.
Editors’ comparative comments
Once again, this is a case which cuts across the boundaries that divide tort from contract in the national legal regimes.
However, despite appearances, the core of this case lies far from most of the technical disputes – on the limits of the notion of contract, the role of good faith, the proper scope of culpa in contrahendo or of detrimental reliance – that might be deemed to be the key factors in the
1025 Jordabalk (Land Act (Finland)), 12.4.1995/540 § 8.
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solution. Comparative analysis shows that legal outcomes which allow, and those that deny, recoverability are to be divided by a line which can be drawn without having recourse to the above categories as screening devices.
The unreasonable breaking off of advanced negotiations is an issue which has arisen in every single legal system by way of adaptation.
Indeed, Austria, England, Germany, Scotland, Sweden and Finland deny recovery in tort. But only England precludes plaintiff’s action no matter under what label it is brought forward. English lawyers implement their restrictive policy by drawing a sophisticated distinction between the duty to disclose (deemed absent under the circumstances) and the duty to be accurate in what has been disclosed (not violated under the circumstances). Scotland and Sweden leave room, albeit not very much, for recovery under statutory contract law and the culpa in contrahendo rule, respectively. Finland makes compensation possible under a statute concerned with land law. Austria and Germany allow recoverability under the culpa in contrahendo rule.
The other legal systems do not raise any obstacles against recoverability.
However, since this is an issue which arises between parties negotiating a contract who, by definition, are not yet parties to a contract, the comparative scenario does not reflect a clear-cut choice on the nature of the liability or legal regime to be applied. The question is particularly relevant as regards the rules governing the statute of limitations and the burden of proof.
The prevailing view in Belgium, France and Italy is that this kind of liability is extracontractual. In Greece, Portugal, Spain and the Netherlands disagreement over classification of the cause of action (whether it is grounded on tort law or contract law, or whether it represents a tertium genus) still divides the interpreters.