COMPLIANCE: INAPLICABILIDADE DA RESPONSABILIDADE OBJETIVA OU EXCULPAÇÃO POR INEXIGIBILIDADE DE CONDUTA DIVERSA? (Compliance: Strict Liability or Supralegal Requirement to Ward off the Culpability?)

2018 ◽  
Author(s):  
Alexandre Cordeiro Macedo
Keyword(s):  
Strict Liability

An Experimental Investigation of Auditors' Liability: Implications for Social Welfare and Exploration of Deviations from Theoretical Predictions

2000 ◽  
Vol 75 (4) ◽  
pp. 429-451 ◽  
Author(s):  
Ronald R. King ◽  
Rachel Schwartz
Keyword(s):  
Experimental Investigation ◽  
Social Welfare ◽  
Strict Liability ◽  
Liability Rule ◽  
Optimal Response ◽  
Legal Regimes ◽  
Theoretical Predictions ◽  
Best Responses

This paper reports the results of an experiment designed to investigate how legal regimes affect social welfare. We investigate four legal regimes, each consisting of a liability rule (strict or negligence) and a damage measure (out-of-pocket or independent-of-investment). The results of the experiment are for the most part consistent with the qualitative predictions of Schwartz's (1997) model; however, subjects' actual choices deviate from the point predictions of the model. We explore whether these deviations arise because: (1) subjects form faulty anticipations of their counterparts' actions and/or (2) subjects do not choose the optimal responses given their anticipations. We find that subjects behave differently under the four regimes in terms of anticipation errors and departures from best responses. For example, subjects playing the role of auditors anticipate investments most accurately under the regime with strict liability combined with out-of-pocket damages, but are least likely to choose the optimal response given their anticipations. This finding implies that noneconomic factors likely play a role in determining subjects' choices.

Torts and Other Wrongs

2019 ◽  
Author(s):  
John Gardner
Keyword(s):  
Public Policy ◽  
Distributive Justice ◽  
Strict Liability ◽  
Private Law ◽  
Moral Significance ◽  
Reasonable Person ◽  
Reasonable Person Standard ◽  
The Law

Torts and Other Wrongs is a collection of eleven of the author’s essays on the theory of the law of torts and its place in the law more generally. Two new essays accompany nine previously published pieces, a number of which are already established classics of theoretical writing on private law. Together they range across the distinction between torts and other wrongs, the moral significance of outcomes, the nature and role of corrective and distributive justice, the justification of strict liability, the nature of the reasonable person standard, and the role of public policy in private law adjudication. Though focused on the law of torts, the wide-ranging analysis in each chapter will speak to theorists of private law more generally.

The Foundations of Civil Liability for Industrial Pollution

2020 ◽  
Vol 11 (3) ◽  
pp. 208-246
Author(s):  
David Messner
Keyword(s):  
Industrial Pollution ◽  
Power Plants ◽  
Strict Liability ◽  
Civil Liability ◽  
Private Law ◽  
Industrial Facilities

Abstract In European private law, operators of industrial facilities, power plants and other sites using special substances or procedures are made responsible for harm caused by pollution even where it is doubtful that such harmdoing is unreasonable or could have been foreseen. Analysing both fault-based and strict liability, the author discusses legal bases for this liability and its justification in European jurisdictions.

scholarly journals Applying the Precautionary Principle to Private Persons : Should it Affect Civil and Criminal Liability?

2005 ◽  
Vol 43 (1) ◽  
pp. 63-78 ◽  
Author(s):  
Bruce Pardy
Keyword(s):  
Precautionary Principle ◽  
Environmental Law ◽  
Criminal Liability ◽  
Strict Liability ◽  
Criminal Punishment ◽  
International Environmental Law ◽  
The Precautionary Principle ◽  
The Past ◽  
Precautionary Action ◽  
Domestic Law

The precautionary principle, developed in international environmental law, is a prospective concept. It can be used to decide what should be allowed to occur in the future. The question addressed in this article is whether, in domestic law, the precautionary principle should be applied retrospectively. Should precautionary behaviour be used as a standard to apply to the past actions of private persons, so as to judge whether those persons have acted legally ? In the civil realm, the answer is « yes ». Applying the precautionary principle in civil cases removes foreseeability requirements, and transforms liability based on fault into strict liability. In the criminal sphere, retrospective application of the precautionary principle is not appropriate. To require precautionary action on the part of an accused in an environmental prosecution transforms strict liability into absolute liability, and creates the potential for criminal punishment in the absence of culpability.

scholarly journals DUTIES AND LIABILITIES IN PRIVATE LAW

Legal Theory ◽  
2006 ◽  
Vol 12 (2) ◽  
pp. 137-156
Author(s):  
Peter Jaffey
Keyword(s):  
Strict Liability ◽  
Corrective Justice ◽  
Private Law ◽  
Liability Claims

Private law is generally formulated in terms of right–duty relations, and accordingly, private-law claims are understood to arise from breaches of duty, or wrongs. Some claims are not easy to explain on this basis because the claim arises from an act that the defendant was justified in doing. The violation/infringement distinction seems to offer an explanation of such claims, but it is argued that the explanation is illusory. Claims of this sort are best understood as based not on a primary right–duty relation at all but on a “primary liability” or “right–liability” relation. A primary-liability claim is not a claim arising from the breach of a strict-liability duty. The recognition of primary-liability claims does not involve skepticism about duties or rules or legal relations and it is consistent with the analysis of private law in terms of corrective justice.

Remoteness of Liability and Legal Policy

1962 ◽  
Vol 20 (2) ◽  
pp. 178-199 ◽  
Author(s):  
R. W. M. Dias
Keyword(s):  
Strict Liability ◽  
Privy Council ◽  
Legal Policy ◽  
Do No Harm ◽  
Controversial Literature

In the course of their stately opinion in the case of The Wagon Mound the Judicial Committee of the Privy Council declared that “their Lordships have not found it necessary to consider the so-called rule of ‘strict liability’ exemplified in Rylands v. Fletcher and the cases that have followed or distinguished it. Nothing that they have said is intended to reflect on that rule.” The best excuse for the present addition to the controversial literature that is accumulating round this case is that, the courts having yet to pronounce on remoteness in cases of strict liability, there seems to be still some room for speculation, especially with reference to policy. It is therefore hoped that the fall, as it were, of yet another leaf in the forest will at least do no harm.

Beshada v. Johns-Manville Products Corp.: The Function of State of the Art Evidence in Strict Products Liability

1984 ◽  
Vol 10 (1) ◽  
pp. 93-114 ◽  
Author(s):  
Jack Berman
Keyword(s):  
New Jersey ◽  
Supreme Court ◽  
State Of The Art ◽  
Strict Liability ◽  
The State ◽  
Health Hazards ◽  
Products Liability ◽  
The Supreme Court ◽  
Liability Claims

AbstractIn Beshada v. Johns-Manville Products Corp., the Supreme Court of New Jersey held that a state of the art defense is unavailable in cases brought under a theory of strict liability for failure to warn. The court indicated that asbestos producers may be held liable for their products' harms even if the health hazards of asbestos were unknown and not discoverable when the products were marketed. In a subsequent case, the New Jersey court held that state of the art evidence is relevant to whether a product is defective. This Case Comment examines these different uses of knowledge evidence in the disposition of products liability cases. It contends that manufacturers should not be held liable for unknowable risks. The Comment concludes that the state of the art defense establishes a logical limit on strict liability and promotes efficient resolution of products liability claims.

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