The Idea of Legal Responsibility

SSRN Electronic Journal, 2011

This Article was part of a symposium on the rise of civil recourse theory. It contributes to this debate by defending a simple but counterintuitive claim: There is no duty to pay damages in either tort or contract law. The absence of such a duty provides a reason for believing that civil recourse provides a better account of private law than does corrective justice. Corrective justice is committed to interpreting private law as creating duties for wrongdoers to compensate their victims. In contrast, civil recourse sees the law as empowering plaintiffs against defendants. My argument is that a careful analysis of the doctrines surrounding pleading, payment of damages, accord and satisfaction, and judgments reveals that our law gives plaintiffs the power to extract wealth from defendants but does not impose duties on defendants to compensate those that they have wronged. The structure of my argument is borrowed from a much older exchange between Oliver Wendell Holmes, Jr., who thought that contract law imposed a duty to perform or pay damages, and Frederick Pollock, who denied that the payment of damages was part of the duty to keep a contract. I side with Pollock against Holmes and think that the Englishman's argument provides a useful model in the debate between corrective justice and civil recourse. * Associate Professor, William & Mary Law School. This Article grew out of a series of exchanges with Curtis Bridgeman, John Goldberg, and Benjamin Zipursky, for which I am grateful. Neal Devins, Andrew Gold, and Stephen A. Smith provided extensive and helpful comments. All errors, of course, remain my sole responsibility. As always I thank Heather. 1. Rather than defend my use of the term private law or the coherence of talking about private law as a unique field, for purposes of this Article I am using the term to refer to torts and contracts. The civil law of obligations also includes what we would call the law of unjust enrichment or quasi-contract. In this Article I do not purport to be opining on the theorization of unjust enrichment.

Proceedings of the International Conference on Law, Governance and Globalization 2017 (ICLGG 2017), 2018

Recent development to claim damages on the basis of either default or unlawful acts would not provide saticfactory grounds to the question of justice. There will be a situation in which that no one shall be unjustly enriched at the expense of another which all outside the scope of contract and unlawful acts (or torts). This has led to the existence of an independent legal doctrine known as unjust enrichment. It is among the most debated private law subjects today in asking for justice. Corrective justice brings to the remedial relation between the plaintiff and the defendant; it is solely concerned with the norm of justice that provides reasons to restitution. Corrective justice properly evaluates the structure of unjustness to the both sides, the plaintiff and the defendant. It gives effect to restitutionary proprietary interests rather than compensatiton. This article elaborates the law of unjust enrichment as ground for restitution in conjunction with the corrective justice. Furthermore, this article focuses on the theoritical foundation of corrective justice to meet the unjustified enrichment criteria.

Objectives: The objectives of concepts responsibility and accountability and the role of this concepts from the juridical and social point of view, to draw a warning about the lack of a proper procedure likely to find and punish the situations of breach of duties that can imply lack of responsibility or accountability. are trying to build a juridical concept of responsibility and accountability taking into considerations the real and complete sense of this concept and this is only from the legal field creating a multidisciplinary article. on observations, analysis, doctrinal research and cases studies. both practical and theoretical applications. The theoretical application is representing by the fact that we establish the real and modern sense of terms as responsibility and accountability, including the relation between this concepts and the states and the concerning the implications of lack of responsibility or lack of accountability expressed into court orders. Implications: The implications of the study area include academics, researchers, institutions and state. Value: This study establishing the theoretical and practical meanings of concepts as responsibility and liability, is underlining the subjects of this concepts and the legal need to hav simple and clear procedure in order to ask and to obtain the a juridical subject.

European Tort Law 2004, H. Koziol and Barbara Steininger (Eds.), Springer, Vienna and New York, 2005, pp. 60-80

Law and Philosophy, 1983

Journal of European Tort Law, 2010

The article proposes a concept of 'non-contractual obligations' as a fundamental legal category for European private law. Non-contractual obligations are an internally coherent part of the law of obligations, and they are fundamentally different from contractual obligations. Unjustified enrichment and tort law should therefore not be treated as independent or opposed types of obligations. A fundamental aspect of this conception is that 'unjustified enrichment' should not be misunderstood as a distinctive legal category; rather, it is a reason for liability that is functionally and structurally comparable with concepts such as fault or individual responsibility which apply throughout the legal system as a whole. To clarify the distribution between contractual and non-contractual obligations, the interplay of contractual and non-contractual rules and principles in borderline areas such as pre-contractual negligence is analysed. (2010) 1 JETL Non-contractual obligations are not a well-established concept of European private law. The European law library contains many textbooks and treatises on contract law, 1 on tort law, 2 on restitution, 3 and on the law of obligations as a whole, 4 but no

2015

In the following paper we will be mapping tort law in the common law, reflecting on the divergence between corrective and distributive justice and their main theoretical defenses deployed by Anglo-American scholars. The concepts are in turn portrayed in their proper context: a legal culture shaped historically different from the continental legal culture. However, at a deeper level, both traditions are motivated by the same goals: how to provide justice for the victims of tort law. Because the road to destination is different, the common law having distinct ways of addressing torts, the continental jurist my need another sets of concepts to understand this domain of law.

Oxford University Press: A landmark research project in the harmonization of European Private Law - attempting to codify common principles of the law of tortious liability Provides a framework for the future development of national and private international law The Study Group on a European Civil Code has taken upon itself the task of drafting common European principles for the most important aspects of the law of obligations and for certain parts of the law of property in movables which are especially relevant for the functioning of the common market. Like the Commission on European Contract Law's Principles of European Contract Law, the results of the research conducted by the Study Group on a European Civil Code seek to advance the process of Europeanisation of private law. Among other topics the series tackles sales and service contracts, distribution contracts and security rights, renting contracts and loan agreements, negotiorum gestio, delicts and unjustified enrichment law, transfer of property, and trust law. The principles furnish each of the national jurisdictions a grid reference. They can be agreed upon by the parties within the framework of the rules of private international law. They may provide a stimulus to both the national and European legislator for moulding private law. Beyond this, they aim to further discussion about the creation of a European Civil Code, or a Common Frame of Reference in the area of patrimonial law, by submitting a concrete model. The Principles of European Law are published in co-operation with Bruylant (Belgium), Sellier (Germany), and Staempfli Publishers Ltd. (Switzerland). Readership: Scholars of private law harmonization in Europe, EU Law and the law of tort/delict, legislators working in the field of tortious liability

Law Phil, 1982