Suchergebnisse

The law of contributory negligence is often treated as an afterthought by academics. It is routinely relegated to a position of relative unimportance in textbooks. This tendency is particularly pronounced in the commercial law sphere, apparently on the assumption that the contributory negligence doctrine is for the most part confined to "accident cases". As a result, learning regarding the law of contributory negligence in the commercial law setting is particularly underdeveloped. The goal of this article is simple. It draws attention to the fact that the contributory negligence doctrine has profound implications for commercial law litigation. It seeks to advance learning with respect to it by engaging with four issues that arise in the commercial law context. It argues, first, that the decision in Forsikringsaktieselskapet Vesta v Butcher has been implicitly overruled by recent decisions of high authority with the result that apportionment for contributory negligence is unavailable in all types of contractual claims. Second, the merits of rules for which Vesta provides and alternatives thereto are critically considered. It is argued that most existing learning on this point is contaminated with serious confusion. Third, it is asked whether the apportionment statute applies in proceedings against auditors. Legislation arguably excludes it, which is a point that has hitherto been overlooked. Finally, the article addresses the intersection between the reflective loss principle and the law of contributory negligence.

The article raises the issue of the relationship between contributory negligence and recourse between multiple tortfeasors. While using historical and comparative examples, the author concludes that it may be possible to jointly consider these concepts. The Roman law knew neither contributory negligence nor right of recourse which would allow for loss apportionment, and that is associated with punitive features of Roman actions in tort. In Germany, both concepts became widespread no earlier than after the civil law codification, and further case law applied rules on contributory negligence to recourse. In English law, contributory negligence as a partial defence and right of recourse appeared only in the course of the legislative reforms of the 20th century. Considering justifications for the similarity of these concepts offered in the doctrine, the author prefers the view that both imply several parties being outcome responsible for the loss. Upon the analysis of imputing acts of third persons as contributory negligence, it is shown that contributory negligence and right of recourse can be used interchangeably in certain contexts. The observed similarity of the two relation types, if true, by virtue of the equal treatment principle, requires that the same scale be applied to them, and implies admissibility of a parallel study.

Examines the phenomenon of cross‐border property lending and some issues regarding lending procedures and decision‐making processes in the context of the relationship between lender and professional adviser. Commences by placing these procedures and processes in the context of the development of cross‐border European property investment and finance. The UK has been a popular destination for overseas investors and lenders over the last decade and is therefore used as a case study to examine the additional institutional risk that overseas lenders may face when operating outside of their own country and obtaining advice from home professionals. The research identified a lack of clarity in roles and relationships between lender and adviser, difficulties in communications both internally and between overseas branches and headquarters and failures in provision and interpretation of advice. Concludes by identifying the issues which may need to be addressed generally by lenders and their advisers, when lenders are operating in overseas markets.