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Part 3 The tasks of tort law
The main purpose of tort law is to provide for a system that compensates the vic- |
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tim. The so-called » idea of reparation « is perceived as profound and is represented |
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in many aspects of tort law rules. One important such expression of the idea is the |
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principle of » compensation in full «. The victim should economically be restored |
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to the position that he would have enjoyed had the damage not occurred. There |
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has been a certain disbelief in the idea of prevention within Scandinavian law58. |
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A variation of this attitude is the idea that there are mechanisms other than the |
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threat of monetary sanctions that motivate people to not injure others59. Lead- |
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ing scholars have simply not believed that the fear of an economic sanction can |
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motivate private citizens to act carefully. The opinion has rather been that the |
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private citizen will try not to harm his fellow citizen for other, more altruistic and |
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ethical reasons. Hence the predominant view has been that the tort law rules will |
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not have any preventive effect in themselves60. This stance has been paired with |
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an almost similarly outspoken confidence in insurance-based solutions61. The lat- |
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ter has also been developed in an environment dominated by high ambitions for |
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providing welfare for citizens. A symptom of this way of thinking is that the social |
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security funds – as mentioned above – can no longer file a recourse action against |
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the tortfeasor for social benefits that actually cover the damage caused by the tort- |
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feasor62. |
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Alongside the views mentioned, there has also been a belief in ideas of » eco- |
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nomic prevention «, especially concerning the organisation of security systems in |
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business activities. It is held that, if factory and other business owners are held |
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liable for the damage they cause, they will implement security measures, hence a preventive effect is the result. At this point, the ideas of prevention are to a certain extent influenced by law and economics63. The insights of law and economics have otherwise played a rather modest role in the realm of tort law thinking.
58See especially F. Bladini, Preventionstanken i den skadeståndsrättsliga utvecklingen, in: B. Dufwa et al ( eds ), Vänbok till Erland Strömbeck ( 1996 ) 55–64.
59P. Lødrup, Lærebok i erstatningsrett ( 2009 ) 113.
60See Lødrup, Lærebok i erstatningsrett 112–115.
61These ideas emerged in the fifties; see an important work of the Swedish researcher Ivar Strahl, the public investigation SOU 1950: 16 Förberedande utredning angåande lagstiftning på skadeståndsrättens område. The work has influenced later development in Sweden and Scandinavia, see on this J. Hellner / M. Radetzki, Skadeståndsrätt ( 2006 ) 49 f.
62Previously there was a legal basis for such recourse action, but this was removed by an Act passed in 1970; see Om lov om endringer I lov om folketrygd, 19 June 1970 no 67.
63Lødrup, Lærebok i erstatningsrett 116–119.
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Bjarte Askeland |
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Only a few scholars have addressed such issues, and there are very few comprehensive works on the subject within tort law64. The prevailing view seems to be that law and economics operates with too many simple and general presuppositions and that the rationality of law and economics does not capture the moral questions that are inherent in tort law. Still, in certain areas the insights of economics can no doubt be helpful; however, not as a replacement for tort law but only as a supplement to tort law reasoning. The notion of continuation of a right ( » Rechtsfortsetzungsgedanke « ) has no accurate or immediate equivalent within Norwegian law.
64See E. Stavang, Naborettens forurensningssansvar ( 1999 ) and T.-L. Wilhelmsen, Årsaksspørsmål i erstatningsretten ( 2012 ).
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117
Part 4 The area between tort and breach of an obligation
The boundaries between claims in contract and in tort are quite unclear. There |
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have historically been attempts to clarify the difference, but modern theorists |
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seem to maintain that the difference is not so important65. The distinction may |
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also be of minor importance because the claimant anyway may choose whether he |
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wants to build his monetary claim on a contractual or delictual basis. The claim- |
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ant will sometimes choose to base his claim on both, for example, principally in |
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contract and subsidiarily on the law of torts. |
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In some contractual areas there is a tradition that claims are based on delict, |
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typically personal injuries which occurred during the performance of a contrac- |
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tual duty. On other occasions the fact that the claimant has a contract serves as |
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an additional argument, among others, to decide the case on a delictual basis66. |
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This is particularly evident in cases of employers’ liability. The fact that there is a |
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contract between the employer and the claimant is relevant to the judgement con- |
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cerning how far the scope of liability reaches67. On this point there is also room |
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for tailored decisions, where the special merits of the case may be thoroughly ex- |
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amined. |
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The categorisation of constellations in the interim area is interesting from a |
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scholarly point of view. There have not been any attempts at corresponding sys- |
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temisation within the Norwegian and Scandinavian doctrinal literature. The problems of the interim areas seem rather to be addressed only where the existence of the contractual elements is relevant in a concrete context. At the same time there are interesting academic works that challenge the interim areas. According to Norwegian law, a potential contractual party who causes a loss to his possible future contractual partner is liable in tort, still with an eye to the special impact of the possible contract68. The responsibility for auxiliaries may be affected by neighbour relationships between the principal and the victim. Hence elements of a sort
65See eg E. Hjelmeng, Revisors erstatningsansvar ( 2007 ) 18–22 and V. Ulfbeck, Erstatningsretslige grænseområder. Profesjonsansvar og produktansvar ( 2004 ) XIII.
66See eg Nygaard, Skade og ansvar ( 2007 ) 186; the contract between the tortfeasor and the victim speaks for liability on the basis of the culpa rule.
67This point was put to the fore quite recently by M. Strandberg, see idem, Arbeidsgiveransvar for forsettlige skadeforvoldelser, Jussens venner ( 2012 ) 33–67, 56 ff. See also B. Askeland, Erstatningsrettslig identifikasjon [ Identification within tort law ] ( 2002 ) 77 f.
68See eg L. Simonsen, Prekontraktuelt ansvar [ Pre-contractual liability ] ( 1997 ).
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of contractual relationship between two neighbours are relevant to the question of vicarious liability.69
2 / 37 Norwegian doctrine seems to have an open approach to the interim areas. There is a danger that the relevant perspective of a case is not taken into account because the court focuses on one of the approaches. An example is that court decisions on employers’ liability have been criticised for not paying attention to the contract involved70.
2 / 38 A crude outline of the difference between claims in delict and claims in contract may be given thus: liability in contract is stricter, often operating with culpa with a reversed burden of proof or strict liability – or most often something close to strict liability71. At the same time there is liability for fault in the case of auxiliaries in their performance of a contract, whereas there is no liability for the faults of an independent contractor. Lastly, it is in general easier to obtain compensation for pure economic loss in contract than in delict. There is a well settled doctrine on compensation for loss of profit, and such compensation also has a legal basis in sales law, which forms a sort of model law for many contractual relationships72.
69Rettens gang ( RG ) 1993, 740, see also Askeland, Erstatningrettslig identifikasjon ( 2002 ) 170 f.
70See eg K. Krüger, Norsk Kontraktsrett ( 1989 ) 208 and 793 and V. Hagstrøm, Utstrekningen av arbeidsgiveransvaret ved straffbar skadeforvoldelse ( 2008 ) – Høyesteretts dom 28. mai 2008, Nytt i privatretten no 4 ( 2008 ) 5–7.
71See eg the liability clauses in many acts concerning special contracts, such as Håndverkertjenesteloven 16 June 1989 no 63 § 28 and Vegfraktavtaleloven 20 December 1974 no 68 § 28.
72See Kjøpsloven 13 May 1988 no 27 § 67.
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