Systems of Liability Flashcards
(24 cards)
Definition of tort
A breach of duty primarily fixed by law, owed generally, and redressible by unliquidated damages (not agreed upon in advance).
Primary concern of tort law
Civil wrongs classified as legally “wrong” or “tortious”.
Why law of torts? (Plural)
Because tort includes many wrongs (e.g., negligence, libel, trespass) with different rules.
Requirement for negligence to be actionable against someone
Proof of damage
Are all torts based on fault?
No; some, like trespass and libel, are actionable without proof of fault or damage.
Criticism of torts definition
Duties, breach
It ignores duties arising by consent, duties owed to individuals, and that breach doesn’t always imply liability.
What does tort law determine in an accident scenario?
Who bears the loss (e.g., the defendant or the victim).
What are the six main principles underlying tort liability?
CFRDEL
Compensation, fault, retributive justice, deterrence, economic efficiency, loss distribution.
What is restitutio in integrum?
Putting the injured party in the position they were in before the wrong.
Why is full compensation not always given in tort?
Due to limits like floodgates of litigation and crushing liability.
How does insurance support tort law’s compensatory goal?
By ensuring most claims are covered regardless of the defendant’s resources.
Why is fault considered important in tort?
It justifies compensation by linking liability to personal responsibility.
Is legal fault always equal to moral blame?
No; legal fault can exist without moral blame.
What undermines the fault principle in practice?
Insurance and vicarious liability (someone else bearing defendant’s responsibility).
What is retributive justice in tort law?
The idea of punishing the wrongdoer to satisfy the victim’s sense of justice.
Is retributive justice a major goal in modern tort law?
No; it overlaps more with criminal law.
What are punitive or exemplary damages for?
Punishing deliberate or oppressive conduct and deterring future wrongdoing.
What is the main criticism of deterrence theory in tort?
Does it always happen?
Liability often falls on insurers or employers, not the actual wrongdoers.
What does economic efficiency (market deterrence) mean in tort?
Shifting risk to those best placed to prevent harm at least cost.
Ex: Product liability for a faulty product prevents harm for the most people even if the manufacturer did not explicitly cause the accident
What is “loss distribution” in tort law?
Spreading the cost of harm across society (e.g., via insurance).
How is vicarious liability related to loss distribution?
It makes employers liable for employees, who are usually insured.
What are some criticisms of loss distribution?
It may ignore fault and weaken deterrence.
What is the role of tort law in the law of obligations?
Alongside contract and restitution, it addresses civil liability for wrongs.
What distinguishes tort from contract law?
Tort compensates for civil wrongs; contract enforces agreed promises.
