دانلود رایگان ترجمه مقاله قانون شبه جرم و تحلیل اقتصادی تطبیقی (نشریه SSRN 2008)

هماهنگ سازی قانون شبه جرم: قانون شبه جرم و تحلیل اقتصادی تطبیقی

Harmonizing Tort Law: A Comparative Tort Law and Economics Analysis

15-1 Introduction

[435] Differences between tort law systems can be analysed from different perspectives. Take for instance liability for pure economic loss, which is prototypical of an ongoing debate among comparative tort law scholars. Tort law systems in Europe diverge considerably in their dogmatic approach to such cases, regarding both the extent to which such claims are acknowledged at all and the legal reasoning used for doing so. In common law systems, the so-called ‘exclusionary rule’ is predominant. Germanic legal systems are hostile to claims for pure economic loss, but do acknowledge certain categories in which protection is offered. Contrastingly, the franco-legal systems tend to be more receptive to claims for pure economic loss as such. There are historical, dogmatic and technical legal explanations for the differences in treatment of pure economic loss and indeed differences between tort law systems as a whole. These explanations have been reported extensively in legal literature and they explain the differences between the main families of tort law in Europe to a considerable extent.

By contrast, comparative law and economics offers both a positive and normative economic analysis of these differences between tort law systems. Cf. M. Faure, 2003, p. 33-34. For example, in the area of pure economic loss, see the comparative economic analysis of pure economic loss by Francesco Parisi, 2003, Francesco Parisi, Vernon Valentine Palmer and Mauro Bussani, 2007. Concerning pure economic loss scholars have put forward several economic justifications for upholding the ‘exclusionary rule’. Others have argued that under specific circumstances there are good reasons for allowing claims for pure economic loss. This illustrates that comparative law as well as law and economics have much to gain from a mutual exchange of insights and ideas. On this topic see, e.g., W. Bishop, 1982; M.J. Rizzo, 1982; W. Bishop, 1982*; W. Bishop, 1982; William Bishop, 1986; Israel Gilead, 1997; Fernando Gómez and Juan Antonio Ruiz, 2004; Giuseppe Dari-Mattiacci and Hans-Bernd Schäfer, 2007.

[436] The positive comparative law and economics analysis usually focuses on the central idea that differences between tort law systems are the result of differing values and preferences in domestic politics, legislation and courts. Cf. M. Faure, 2008, p. 40. Systems may thus spontaneously develop in converging or diverging directions. On the economics of convergence see, e.g., the game-theoretical analysis of convergence by Arnald J. Kanning, 2003, p. 12 ff. The topic of convergence is closely related to the economic analysis of ‘legal transplants’. See, e.g., Ugo A. Mattei, Luisa Antoniolli and Andrea Rossato, 2000, p. 509 ff.; Jörg Fedtke, 2006, Ugo A. Mattei, 1997, p. 101 ff., 434 ff.; A. Ogus, 1999, p. 409; Heico Kerkmeester and Louis Visscher, 2003, p. 5 ff. On methods of convergence see, e.g., Jan Smits, 2006, p. 66-67.

A comparative analysis also allows us to test the effectiveness of legal regimes and to perform cost-benefit analysis on the various alternative tort systems. Such comparative analysis may show that the reduction in tertiary accident costs of hospital injuries in legal systems adhering to a no-fault compensation scheme is superior to legal systems using faultbased tortious liability in such cases. See, e.g., the comparative legal and economic analysis by Rui Cascão and Ruud Hendrickx, 2007.

Moreover, comparative law and economics may show that, although the legal reasoning and historical roots of specific items within tort law systems vary, the ultimate rationales may be identical. Cf. the distinction between ‘working rules’ and ‘legal formants’ by Ugo A. Mattei, Luisa Antoniolli and Andrea Rossato, 2000, p. 507 (cf. Ugo A. Mattei, 1997, p. 69 ff), or between actual and superficial differences by A. Ogus, 1999, p. 405. In this respect, for instance, both strict liability and fault-based liability with a rebuttable presumption of fault may serve exactly the same goals although the legal foundations are not identical. Cf. M. Faure, 2003, p. 60. As far as the normative comparative analysis is concerned, such efforts are usually set against the background of the Calabresi framework. Seminal Guido Calabresi, 1970. Cf. R. Cooter and T. Ulen 2008, p. 336 ff. For Europe, see, e.g., Hans-Bernd Schäfer and Claus Ott, 2004, p. 113 ff.