Suchergebnisse

The efficiency criterion (the highest care level at the lowest accident cost) indisputably governs the comparison of performance between strict liability and negligence. This view stems from the standard accident model development in the 70's and the 80's that ensures under ideal conditions, the equivalence between regimes and assume their potential substitutability. We develop a more general accident model (under risk universe) with divergent views among the parties about the damage. It follows that efficiency is no longer a relevant criterion. liability regimes belong to specific fields: Ultra-hazardous activities for strict liability and the remaining areas of negligence.

The efficiency criterion (the highest care level at the lowest accident cost) indisputably governs the comparison of performance between strict liability and negligence. This view stems from the standard accident model development in the 70's and the 80's that ensures under ideal conditions, the equivalence between regimes and assume their potential substitutability. We develop a more general accident model (under risk universe) with divergent views among the parties about the damage. It follows that efficiency is no longer a relevant criterion. liability regimes belong to specific fields: Ultra-hazardous activities for strict liability and the remaining areas of negligence.

Duty of care cannot be used anymore as the touchstone to differentiate negligence from strict liability, because the scope of liability (traditionally called proximate causation) requirement replicates many of the former features. Indeed, under a negligence rule the marginal Hand formula is applied twice: first to assess whether the defendant did breach his or her duty of care, and, second, to delimit whether defendant's behavior was a proximate cause of the harm suffered by the victim. But under a strict liability rule, the Hand formula question is applied only once when the proximate causation question is raised. Traditional law and economics analysis has almost always taken normative questions raised by the causation requirement as given, which is a major flaw of mainstream models, because the centrality of the scope of liability or proximate causation requirement in real legal practice is disregarded if not simply expelled from the analysis. Then, definining the subjective scope of liability, that is to say, the boundaries of the pool of potential defendants, is the basic policy decision in each an every liability rule. In the model presented in this paper, the government first chooses efficient scope of liability, and, second, given the scope of liability, the government decides liability rule and damages that guarantee efficient precaution. In the final part of the article, most known scope of liability doctrines developed by both common law and civil law systems are described in order to show how large the common ground between negligene and strict liability can be.