Wrongfulness as a Necessary Cause of the Losses - Removing an Alleged Difference between Strict Liability and Negligence
DOI:
https://doi.org/10.18836/2178-0587/ealr.v2n2p188-203Abstract
In several Law and Economics publications in the area of tort law, emphasis is being placed on an alleged difference between strict liability and negligence. Under strict liability, an injurer is liable for the losses of the victim, irrespective of his level of care. Under negligence, the injurer is not liable if he took at least the legally required care level. According to the mainstream Law and Economics literature, this feature of negligence causes a discontinuity in the expected private costs of the injurer. In this paper, I argue that this discontinuity does not exist in reality, because courts, when applying the negligence rule, require that the negligence was a necessary cause of the accident. After all, if the model adopted in economic analyses of tort law does not reflect the essence of this body of law, it will not be able to yield correct predictions or valuable policy recommendations.
Downloads
Downloads
Published
Issue
Section
License
The submission of a paper to Economic Analysis of Law Review implies the transfer, by the author(s), to the Catholic University of Brasília (UCB), of the aforementioned work for purposes of reproduction, dissemination, distribution, printing, publication and availability.
This journal offers immediate free access to its content, following the principle that making scientific knowledge freely available to the public provides greater global democratization of knowledge.
Authors who submit manuscripts for publication in EALR irrevocably agree to the following terms:
- Authors retain copyright but grant Economic Analysis of Law Review the right of first publication, with the work simultaneously licensed under a Commons Attribution-Share License, after publication, allowing the sharing of the work with acknowledgment of its authorship and initial publication in this journal.
- Authors and EALR are authorized to sign additional contracts separately, for non-exclusive distribution of the version of the article published in this journal (e.g., publish in an institutional repository or as a book chapter), with recognition of authorship and initial publication in this journal.
- Authors are allowed and encouraged to publish and distribute their work online (e.g., in institutional repositories or on their personal webpage) at any point before or during the editorial process, as this can generate productive changes as well as increase impact and citation of the published work (see The Effect of Open Access).
