An approach to the theory of civil liability resulting from the risk of harm

Document Type : Original Article

Authors

University of Tehran

10.22034/jlr.2021.184997.1624

Abstract

An approach to the theory of civil liability resulting from the risk of harm


Abstract
Whenever we talk about civil liability, it is thought that the damage has been caused and must be compensated. However, foreign jurists have expressed the opinion that when the tortious act is committed, even if loss is not achieved, it will result in civil liability because it poses a risk of injury. One of these theories seeks to prove that committing tortious act against individuals is itself a loss that can be compensated. Another theory by criticizing the interference of the element of chance in conventional civil liability and its reliance on consequentialist ethics, believes that merely committing tortious act is sufficient and necessary condition for liability. As we will see, both of these theories have their drawbacks, which will make it impossible to accept them not only in foreign law but also in Iranian law.
Key words: fault without harm, create risk of harm, posing at risk, consequentialist ethics

Keywords

Main Subjects

References

  1.  

    Books

    1. Porat, Ariel and Alex Stein. Tort Liability under Uncertainty. New York : Oxford University Press. 2001.
    2. Ripstein, Arthur and Zipursky, Benjamin C. "Corrective Justice in an Age of Mass Torts."PHILOSOPHY AND THE LAW OF TORTS, G. Postema, Cambridge, Cambridge University Press, 2001.

    Articles

    1. Finkelstein, C. "Is Risk a Harm?" University of Pennsylvania Law Review 151, 2003.
    2. Fischer, J. M. and Ennis, R. H. "Causationa and Liability." Philosophy & Public Affairs 15, 1986.
    3. Gerecke, D. "Risk Exposure as Injury: Alleviating the Injustice of Tort Causation Rules." McGill Law Journal 35, 1990.
    4. Robinson, G. O. "Multiple Causation in Tort Law: Reflections on the Des Cases." Virginia Law Review 68, 1982.
    5. Robinson, G. O. "Probabilistic Causation and Compensation for Tortious Risk." The Journal of Legal Studies 14, 1985.
    6. Schroeder, C. H. "Corrective Justice and Liability for Increasing Risks." UCLA Law Review 37, 1990.
    7. Simons, K. W. "Corrective Justice and Liability for Risk-Creation: A Comment." UCLA Law Review 38, 1990.
    8. Thomson, J. J. "The Decline of Cause." Georgetown Law Journal 76, 1987.
    9. Weinrib, E. J. "Legal Formalism: On the Immanent Rationality of Law." The Yale Law Journal 97, 1988.
    10. Weinrib, E. J. "The Structure of Unjustness." Boston University Law Review 92, 2012.
    11. Zipursky, B. "Unrealized Torts." Virginia Law Review 88, 2002.

     

Legal Research Quarterly
Volume 24, Issue 95 - Serial Number 95
November 2021
Pages 81-106

Files

History

  • Receive Date: 27 May 2020
  • Revise Date: 02 February 2021
  • Accept Date: 08 February 2021

Share

How to cite

Statistics