Sunday, February 12, 2012

ABSOLUTE LIABILITY / STRICT LIABILITY | GEFÄHRDUNGSHAFTUNG UNBEDINGTE HAFTPFLICHT / DIE KAUSALHAFTUNG / DELIKTSHAFTUNG | RESPONSABILITÉ DE PLEIN DROIT ACCIDENT LAW | UNFALLRECHT


ABSOLUTE LIABILITY / STRICT LIABILITY | GEFÄHRDUNGSHAFTUNG UNBEDINGTE HAFTPFLICHT / DIE KAUSALHAFTUNG / DELIKTSHAFTUNG | RESPONSABILITÉ DE PLEIN DROIT
ACCIDENT LAW | UNFALLRECHT
ACT | HANDLUNG / POSITIVES TUN
ACTION AT LAW | KLAGE
ACT OF GOD |  HÖHERE GEWALT |  FORCE MAJEURE
ACTIO PERSONALIS MORITUR CUM PERSONA / MORITUR DOKTRIN
AGENT  | VERTRETER | AGENT | AGENTE
Agente
agent
agent
Related Concepts: Principle, Master, Servant, Respondeat Superior, Vicarious liability, Constructive liability
AGENCY | ? | REPRÉSENTATION |
ALL-OR-NOTHING PRINCIPLE / FULL COMPENSATION PRINCIPLE) | ALLES ODER NICHTS PRINZIP / GRUNDSATZ DER TOTALREPARATION  FULL COMPENSATION PRINCIPLE | PRINCIPE DE RÉPARATION INTÉGRALE
APPORTIONMENT OF DAMAGES / APPORTIONMENT OF LIABILITY | SCHADENSVERTEILUNG / HAFTUNGSVERTEILUNG
ASSUMPTION OF RISK | HANDELN AUF EIGENE GEFAHR
ASSAULT |  TÄTLICHE BELEIDIGUNG? STRAFBARE HANDLUNG | VIOLENCE
Strafbare Handlung
Violence
ASSETS | VERMÖGEN | PATRIMOINE
AUTONOMY
AVOIDABLE CONSEQUENCES RULE | SCHADENSMINDERUNG

BATTERY | STRAFBARE HANDLUNG GEGEN LEIB UND LEBEN | VIOLENCE:
In German Law: Strafbare Handlung gegen Leib und Leben
In French Law: Violence
In Italian Law
BREACH OF CONTRACT | VERTRAGSVERLETZUNG
BIVENS CLAIM (CONSTITUTIONAL TORT):
BURDEN
Burden of production / burden of going forward with the evidence  | Behauptungslast/Darlegungslast/ Beweisführungslast | charge de la preuve | onere della produzione della prova:
Beweisführungslast
Charge de la Preuve
onere della produzione della prova
Burden Of Proof | Beweislast | Charge de la Preuve | onere della prova / onere probatorio:
And Hearing of Evidence | Beweisaufnahme | administration des preuves / audition des preuves:
-C-
CAPACITY  | RECHTSFÄHIGKEIT / GESCHÄFTSFÄHIGKEIT | CAPACITÉ JURIDIQUE |  CAPACITÀ GIURIDICA:
Rechtsfähigkeit (suggested translation: enjoyment of civil rights | jouissance des droits civiques | esser titolare di diritti civili)
Geschäftsfähigkeit
Capacité juridique
CAUSATION
Cause, Proximate / Legal Cause | Näheste verursachung( ?) |  cause proche /   cause prochaine | causa prossimale:
cause proche /   cause prochaine
Cause in fact / But-for causality  | condicio sine qua non formel / sine qua non
CHATTEL | BEWEGLICHE KÖRPERLICHER GEGENSTAND | PROPRIÉTÉ MOBILIER
CHILDREN, MINOR:
Haftung der Kinder
Beschränkte Haftung der Eltern
Responsabilité
La responsabilité civile
Children and attractive nuisance-
CIVIL LAW / CONTINENTAL CIVIL LAW / CONTINENTAL LAW | KODIFIZIERTES PRIVATRECHT (IN DER TRADITION DES CODEX JUSTINIAN
CIVIL LIABILITY | PRIVATRECHTLICHE HAFTUNG
CLASS ACTION LAWSUIT
CLEAR AND CONVINCING EVIDENCE
COINSURANCE ?
CONSTITUTIONAL TORT
COMPANY | HANDELSGESELLSCHAFT | SOCIÉTÉ
COLLATERAL SOURCE RULE : ~VORTEILSAUSGLEICHUNG
COMMON CARRIER | OEFFENTLICHER TRANSPORTUNTERNEHMER | TRANSPORTEUR PUBLIC | IMPRENDITORE DI TRASPORTO PUBBLICO:
COMPARATIVE FAULT:
COMPENSATIO LUCRI CUM DAMNO / SET-OFF
COMPENSATION, EQUITABLE, FAIR | BILLIGE ENTSCHÄDIGUNG IN GELD
COMPENSATION IN KIND | NATURALRESTITUTION | RESTITUTION IN NATURA / : RESTITUTION EN NATURE
COMPENSATION | AUSGLEICH
COMPENSATORY DAMAGES : IMMATERIALLER EINBUSSEN UND VERMÖGENSSCHÄDEN
COMPENSATION IN-KIND | NATURALRESTITUTION  | EN NATURE:
CONCURRENT TORTFEASOR / JOINT TORTFEASOR | GESAMTSCHULDNER  | CO-AUTEUR DU FAIT DOMMAGEABLE / AUTEUR CONJOINT DE DELIT:
CONSENT | EINWILLIGUNG | CONSENTEMENT:
Einwilligung
Consentement
autorizzazione / assenso
CONSENT: INFORMED  | AUFGEKLÄRTE EINWILLIGUNG NACH AUFKLÄRUNG | CONSENTEMENT ÉCLAIRÉ | ASSENSO INFORMATO:
CONSEQUENTIAL DAMAGES | FOLGESCHÄDEN
CONSORTIUM, LOSS OF | VERLUST DES LIEBESPARTNERS | PRIVATION DE COMPAGNIE CONJUGALE:
CONSTITUTIONAL TORTS | VERLETZUNG VERFASSUNGSRECHTLICHER FREIHEITEN
CONSTITUTION | GRUNDGESETZ/VERFASSUNG | LOI FONDAMENTALE / CONSTITUTION:
Verfassung
loi constitutionnelle / loi fondamentale / constitution
CONTRA BONOS MORES / AGAINST GOOD MORALS | SITTENWIDRIG
CONTRIBUTORY NEGLIGENCE | PART DE RESPONSABILITE DE LA VICTIME DANS UN ACCIDENT / NEGLIGENCE CONCURRENTE / FAUTE DE LA VICTIME / IMPRUDENCE CONCURRENTE / NEGLIGENCE CONCURRENTE | MITGEFÄHRDUNG :
CORPORATION | KAPITALGESELLSCHAFT | SOCIETE ANONYME (A RESPONSABILITE LIMITE)
CORRECTIVE JUSTICE | GERECHTIGKEIT | LA JUSTICE CORRECTIVE:
CREATION OF RISK | GEFÄHRDUNG
CUSTOM / CUSTOMARY LAW | GEWOHNHEITSRECHT | DROIT COUTUMIÈR :
Consuetudo.
Consuetudo est altera lex.
Consuetudo interpres legum.
Consuetudo loci observanda.
-D-
DAMAGES
Damages | Schadensersatz (in Geld) / Schäden
Damage, Actual | Konkreter Schaden | Indemnisation effective
Damages, Civil / Constitutional tort
Damages, compensation for | Schadensersatz | dommages et intérêts |   risarcimento dei danni
Damages, Constructive
Damage, Compensatory (opp. To punitive damages) | Ersatz eines eingetretenen (materillen oder immateriellen) Schadens Ausgleichsentschädigung ? |  dommages-intérêts compensatoires / indemnité compensatrice | premio di compensazione
Damages, Consequential | Folgeschaden (aus Primärschaden)/ Indirekter Schaden | dommage consécutif / dommages secondaires / dommage indirect
Damages, Direct | | dommage direct
Damage, Divisible | teilbarer Schaden (bei Nebentäterschaft)
Damage, Emotional | Gefühlsschaden
Damages, exemplary | Exemplarischer Schadensersatz |  dommages-intérêts exemplaires |                       risarcimento danni
Damages, General | Ersatz eines immateriallen Schadens | Courants danni generici
Damages, Hedonic
Damages, Monetary | Vermögensschaden
Damages, Measure of | base d'évaluation des dommages-intérêts
Damages, Mitigation of | Obligation de limiter les dommages
Damages, Nominal | dommages-intérêts symboliques
Damages, Non-Economic
Damages for pain and suffering | schmerzengeld
Damage per se / actionable per se | Eine Rechtsgutsverletzung wird einem kompensationsfähigen Schaden gleichgesetzt
Damages, presumed
Damages, punitive  | dommages-intérêts punitifs
Damages, Ricochet | Abgeleiteter Schaden (ohne eigene Verletzung)
Damages, Special | Ersatz eines konkretes Vermögensschadens | dommages-intérêts spéciaux
Damages, Treble / Treble Costs | Strafschadensersatz
Damages, Treble costs
DAMNUM SINE INJURIA
DECEIT | ARGLISTIGE TÄUSCHUNG | BETRUG
DEFAMATION | VERLEUMDUNG / ÜBLE NACHREDE / BELEIDIGUNG
Defamation and Public Figures
Defamation and the Constitution
Defamation and Opinion
Defamation, Fact or Opinion
DEFAULT / DEFECT |  FEHLVERHALTEN / FEHLER (?)
DEFECTIVE PRODUCT
DEFENCE
Defence | Einwendung / Rechtfertigung
Defence, Affirmative
Defence, Dilatory.
Defence, Equitable
Defence, Full.
Defence, General
Defence, Legal
Defence, Peremptory
DEFENDANT | BEKLAGTER
DEFENDANT | BEKLAGTE
DELICT/TORT | DELIKT (~HAFTUNG)
DETERRENCE | ABSCHRECKUNG / PRÄVENTION
DISCERNMENT | EINSICHTSFÄHIGKEIT
DISCLAIMER / WAIVER |
DISCRIMINATION | DISKRIMINIERUNG
DIVISION OF THE BURDEN OF PROOF | BEWEISLASTVERTEILUNG
DUE CARE / STANDARD OF CARE
DURESS | ZWANG / NÖTIGUNG
DUTY
Duty of Care | Verkehrspflicht („Sorgfaltspflicht“)
Duty to act | Pflicht zu Handeln
Duty to ensure safe premises | Verkehrssicherungspflicht
Duty, Organisational | Organisationspflicht
Duty, Supervisory | Aufsichtspflicht
Due Care / Standard of care
Duty
No Duty Doctrine
Duty, breach thereof
-E-
EFFICIENT CAUSE
EMERGENCY | NOTFALL ?
EMINENT DOMAIN
EMOTIONAL DISTRESS | GEFÜHLSSCHADEN
EMPLOYEE VS. INDEPENDENT CONTRACTOR
ENTERPRISE LIABILITY
EMPLOYMENT
EMPLOYMENT-AT-WILL
EPEDEMIOLOGICAL PROOF
EQUITY
EVIDENCE
Clear and Convincing | hohe Wahrscheinlichkeit
See supra clear and convincing evidence
Beyond reasonable doubt | mit an sicherheit grenzende Wahrscheinlichkeit
Preponderance of | Überwiegende Wahrscheinlichkeit
Presentation of evidence | Beweisaufnahme
PRESENTATION OF EVIDENCE | BEWEISAUFNAHME
Evaluation of evidence | Beweiswürdigung
EXCUSE.
EXPECTATION DAMAGES | ERFÜLLUNGSINTERESSE
EXTENT OF LIABILITY | HAFTUNGSAUSFÜLLUNG
-F-
FAULT | (ZIVILRECHTLICHES) VERSCHULDEN
Comparative | Mitverschulden
Contributory | Mitverschulden
FEDERAL LAW | BUNDESRECHT
FELLOW SERVANT RULE | NICHT HAFTUNG DES ARBEITGEBERS, WENN EIN ARBEITER SCHULDHAFT EINEN ANDEREN VERLETZT
FORESEEBILITY | VORHERSEHBARKEIT
FOUNDATION OF LIABILITY / BASIS OF LIABILITY | HAFTUNGSGRUND
-G-
GENERAL CONTRACT TERMS | ALLGEMEINE GESCHÄFTSBEDINGUNGEN
GOVERNMENTAL IMMUNITY
GOVERNMENTAL LIABILITY | STAATSHAFTUNG
-H-
HONOUR; REPUTATION : EHRE
HOSPITAL LIABILITY | KRANKENHAUSTRÄGERHAFTUNG
-I-
IMMUNITY:
INDEPENDENT CONTRACTOR
INFORMED CONSENT
INSURANCE | VERSICHERUNG
First party | Schadensversicherung
Third party | Haftpflichtversicherung
Social | Sozialversicherung
IMMUNITY
Governmental Immunity
Types of  Personal Immunity
Qualified Immunity
Absolute Immunity
Charitable Immunity
Corporate Immunity
Discretionary Immunity
Executive Immunity
Judicial Immunity
Legislative Immunity
Official Immunity
Ministerial / Discretionary distinction
IMPUTATION | ZURECHNUNG
IMPUTED NEGLIGENCE
INDEMNITY | ENTSCHÄDIGUNG
INDEPENDENT CONTRACTOR | SELBSTÄNDIGER VERTRAGSPARTNER
INFORMED CONSENT
INJUNCTION | UNTERLASSUNGSANORDNUNG
INJURY | VERLETZUNG (EINES RECHTLICH GESCHÜTZTEN INTERESSES)
Personal| Verletzung körperlicher Integrität (Körperschaden)
INTENT | VORSATZ
INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
INTENTIONAL INTERFERENCE WITH PROSPECTIVE ECONOMIC ADVANTAGE
INTENTIONAL INTERFERENCE WITH CONTRACT
INTENTIONAL TORTS | VORSÄTZLICHE DELIKTE
INTERVENING CAUSE / INTERVENING EFFICIENT CAUSE
-J-
JOINT AND  SEVERAL LIABILITY | MITVERSCHULDUNG / MITGEFÄHRDUNG / GESAMTSCHULDNERISCHE HAFTUNG
JOINT TORTFEASORS:
JUSTIFICATION | RECHTSERTIGUNGSGRUND
-L-
LAW
LEGAL CAUSE / PROXIMATE CAUSE | ZURECHNUNGSGRUND
LIABILITY | HAFTUNG
Insurance, liability | Haftpflichtversicherung
Extent of liability | Haftungsausfüllung
Foundation of liability | Haftungsgrund
Joint and several liability | Gesamtschuldnerische Haftung
Insurance liability | Haftpflichtversicherung
Proportional liability | Anteilshaftung
Contributory negligence vs. comparative fault
Market share liability
Epedemiological Proof
LIBEL | MÜNDLICHE BELEIDIGUNG
Libel Per Se
LICENCE | LIZENZ
LOSS | SCHADEN
Economic / pecuniary | Vermögensschaden
Pure economic | Reiner Vermögensschaden
LOSS OF CONSORTIUM : VERLUST DES LIEBESPARTNERS
-M-
MALICE | ARGLIST
MARKET SHARE LIABILITY | MARKTANTEILSHAFTUNG
MASS TORTS | MASSENSCHADENSFÄLLE
MASTER AND SERVANT | ARBEITGEBER UND ARBEITNEHMER
MEANS OF PROOF | BEWEISMITTEL
MEDICAL MALPRACTICE | MEDIZINISCHE BEHANDLUNGSFEHLER
MINOR CHILDREN | MINDERJÄHRIGE
MISREPRESENTATION
MITIGATION | SCHADENSMINDERUNG
MONETARY DAMAGES | SCHADENSERSATZ IN GELD / GELDENTSCHÄDIGUNG (?)
MORAL INJURIES | NORMATIVER SCHADEN
-N-
NECESSITY | NOTSTAND [?]
NEGLIGENCE | FAHRLÄSSIGKEIT (ALS DELIKT) / FAHRLÄSSIGKEIT (ALS SCHULDFORM)
Comparative negligence | Mitverschulden (am: Quotelung)
Contributory negligence
Criminal negligence | Fahrlässigkeit als strafrechtliche Schuld
Slight negligence | Leichte Fahrlässigkeit
Ordinary negligence | Normale Fahrlässigkeit
Gross negligence | Grobe Fahrlässikeit
Per se negligence | Per se Fahrlässigkeit
NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS
NO-FAULT LIABILITY | GEFÄRDUNGSHAFTUNG
NON-DELEGABLE DUTIES | NICHT DELEGIERBARE PFLICHTEN [??]
NOMINAL DAMAGES | NOMINAL SCHADENSERSATZ / SYMBOLISCHER SCHADENSERSATZ
NON-PECUNIARY LOSSES | NICHT VERMÖGENSSCHÄDEN
NON-MATERIAL DAMAGES | IMMATERIALLER SCHÄDEN
NUISANCE
-O-
OCCUPIERS’ LIABILITY | HAFTUNG VON GRUNDBESITZERN
OMMISSION
ORDINARY NEGLIGENCE
-P-
PATENT | PATENT
PER QUOD (LIBEL PER QUOD, SLANDER PER QUOD)
PER SE (SLANDER PER SE, LIBEL PER SE)
PERSONALITY RIGHTS | PERSÖNLICHKEITSRECHTE
PLAINTIFF | KLÄGER
POLLUTION | UMWELTVERSCHMUTZUNG
POSESSION | BESITZ
PRESCRIPTION / STATUTE OF LIMITATIONS |VERJÄHRUNG
PRESCRIPTION PERIOD | VERJÄHRUNGSFRIST
PRIMA FACIE | ANSCHEINSBEWEIS
PRINCIPAL | GESCHÄFTSHERR
PRIVATE NUISANCE
PRIVACY | PRIVATHEIT / PRIVATER BEREICH
PRIVILEGE
PRIVITY OF CONTRACT | RECHTSVERHÄLTNIS ZWISCHEN VERTRAGSPARTNERN
PRESENTATION OF EVIDENCE | BEWEISAUFNAHME
PRIMA FACIE TORT
PROCEDURE
Civil
Criminal
PRODUCTS LIABILITY | PRODUKTS(GEFÄHRDUNGS)HAFTUNG
PROHIBITION OF ENRICHMENT | BEREICHERUNGSVERBOT | NI PERTE NI PROFITE
PROOF BY A PREPONDERANCE OF THE EVIDENCE (LIT. REASONABLY PROBABLE). ÜBERWIEGENDE WAHRSCHEINLICHKEIT
PROPERTY | EIGENTUM
PROPERTY DAMAGE | VERLETZUNG VON EIGENTUM / SACHSCHADEN
PROXIMATE CAUSE | NICHT ZU ENTFERNTE URSACHE
PUNITIVE DAMAGES : STRAFSCHADENSERSATZ
QUASI-CONTRACT
-R-
REAL RESTITUTION
RECKLESSNESS | RÜCKSICHTSLOSIGKEIT / WILLFUL NEGLIGENCE / WANTON NEGLIGENCE.
REDUCTION OF THE BURDEN OF PROOF | BEWEISERLEICHTERUNG [\?]
REGULATORY AGENCIES
RELATIONAL TORTS | (INDIREKTE DISTANZDELIKTE) [??]
REMEDIES | SANKTIONEN
RES IPSA LOQUITOR | ANSCHEINSBEWEIS
RESPONDEAT SUPERIOR | HAFTUNG DES ARBEITGEBERS FÜR DIE DELIKTE SEINER ARBEITNEHMER (OHNE EIGENES VERSCHULDEN)
RESTITUTIONARY RIGHTS:
REVERSAL OF THE BURDEN OF PROOF | BEWEISLASTUMKEHR
RIGHT TO AN INJUNCTION | UNTERLASSUNGSANSPRUCH
RIGHT TO PRIVACY / RIGHT (OR RIGHTS) OF THE PERSON (OR PERSONALITY) | PERSÖNLICHKEITSRECHTE: (LIT. RIGHT OF PERSONALITY)
Appropriation
Intrusion
Public Disclosure of Private Facts
Melvin v. Reid, 112 Cal.App. 285, 297 P. 91;
False Light
RISK DISTRIBUTION | RISIKOVERTEILUNG
RULE-EXCEPTION PRINCIPLE | REGEL-AUSNAHME PRINZIP
-S-
SATISFACTION INTEREST | GENUGTUUNG
SCHADENERSATZANSPRUCHEN VERSTORBENER REGELN
SERVANT | ARBEITNEHMER
SERVANT, PUBLIC | BEAMTER
SLANDER | BELEIDIGUNG (DURCH SCHRIFTLICHE ÄUßERUNG) MÜNDLICHE VERLEUMDUNG; BELEIDIGUNG; ÜBLE NACHREDE
SOVEREIGN IMMUNITY
SPECIAL DAMAGES | EIGENEN SCHÄDEN
STANDARD OF CARE | VERHALTENS / SORGFALTSSTANDARD
STANDARD OF PROOF (ONUS PROBANDI)| BEWEISMASS
STARE DECISIS
STATUTE OF LIMITATIONS | VERJÄHRUNGSREGEL
STATUTORY DUTY | GESETZLICHE VERHALTENSPFLICHT
STRICT LIABILITY, ESPECIALLY STRICT PRODUCTS LIABILITY | GEFÄHRDUNGSHAFTUNG
SUPERSEDING CAUSE
SURVIVAL STATUTES | GESETZE, DIE DEN ÜBERGANG VON
-T-
THIN SKULL RULE | HAFTUNG AUCH BEI UNVORHERSEHBARER VERLETZUNG WEGEN KONSTITUTIONBEDINGTER ÜBEREMPFINDLICHKEIT
TORT | DELIKT / UNERLAUBTE HANDLUNG
TORT, PRIMA FACIE
TORT-FEASOR | DELIKTSTÄTER
TORT-FEASOR, JOINT / CONCURRENT | MITTÄTER NEBENTÄTER [???]
TORT CLAIMS ACT
Federal Tort Claims Act
TOXIC TORTS
TRADEMARK
TRADE NAME
TRESPASS | VORSÄTZLICH RECHTSWIDRIGES EINDRINGEN
Trespass and battery and trespass vi et armis (vie-et-armes)
Trespass to goods
Trespass to land
Trespass to the person | Trespass vi et armis (vie et armes) / tresspass force and arms
Trespass to chattels
Trespass on the case
TRESPASSER
-U-
UNAVOIDABLE ACCIDENT | UNVERMEIDBARES EREIGNIS
UNITY OF INJURY AND DAMAGE IN THE SAME PERSON | TATBESTANDPRINZIP
UNJUST ENRICHMENT | UNGERECHTFERTIGTE BEREICHERUNG
UNLAWFULNESS | RECHTSWIDRIGKEIT
UNLAWFULNESS, KNOWLEDGE THEREOF | UNRECHTSBEWUßTSEIN
-V-
VERSANTI IN RE ILLICITA IMPUTANTUR OMNIA QUAE SEQUNTUR EX DELICTO (WHO ACTS CONTRARY TO THE LAW WILL BE HELD RESPONSABLE FOR ALL CONSEQUENCES WHICH FOLLOW THEREFROM).
VICARIOUS LIABILITY | ARBEITGEBERHAFTUNG FÜR ARBEITNEHMERDELIKTE (OHNE ARBEITGEBERVERSCHULDEN)
-W-
WARRANTY | GARANTIE
Implied warranty.
WORKER’S COMPENSATION | US-GESETZE ZUR REGELUNG VON ARBEITNEHMERANSPRÜCHEN BEI ARBEITSUNFÄLLEN
WRONGFUL
WRONGFUL DEATH CASES | FAHRLÄSSIGE TÖTUNG (POSSIBLY: UNERLAUBTE TÖTUNG)
WRONGFUL BIRTH/WRONGFUL LIFE
Wrongful birth | Farhlässig verursachte Gebeurt (eines gesunden Kindes)
Wrongful life | fahrlässig nicht ermöglichte Abtreibung eines (genetsich kranken) Fötus
WRONGFUL INJURY | UNRECHTE / FARLÄSSIGE VERLETZUNG EINES RECHTLICH GESCHÜTZTEN INTERESSES
WRONGFUL BEHAVIOR | UNRECHTES / FAHRLÄSSIGES VERHALTEN
WRONGFULNESS | UNRECHT, FAHRLÄSSIGKEIT
The Dictionary

Absolute Liability / strict liability | Gefährdungshaftung unbedingte Haftpflicht / die Kausalhaftung / Deliktshaftung | Responsabilité de plein droit

Liability even when there is no proof of negligence. Strict liability appears most often in cases of product liability where manufacturers are held legally responsible for injuries caused by defects in their products, even if they were non-negligent; liability that is imposed without fault.

The essence of a claim based on strict liability is that the degree of negligence of the defendant is irrelevant to the determination of their liability for the consequences of the accident. Such liability may be imposed because of the inherently dangerous instrumentality which is governed as a source of strict liability, for example, alcohol. Dram Shop Acts hold a business which sells alcoholic drinks or a host who serves liquor to a drinker who is obviously intoxicated or close to it, strictly liable to anyone injured by the drunken patron or guest. However some states specifically ban such liability by statute. Another example of strict liability is the attractive nuisance doctrine for example holds that where a landowner has land which has a dangerous feature which attracts children – a pond, a mine

The equivalent German terms are  Gefährdungshaftung, unbedingte Haftpflicht, Kausalhaftung, Deliktshaftung and Gefährdungshaftung. Gefährdungshaftung however best conveys the concept of strict liability, i.e. liability without fault or liability where fault is irrebutably presumed. For example, the German regime of motor liability implicates any owner of a motor vehicle for the legal liability of all damages which arise out of the use of the vehicle. Drivers are also strictly liable, however drivers can reduce their liability by a proof of non-culpability. In cases of two damaged vehicles the damages to each vehicle will be used to offset the determination of the loss.

The equivalent French term is « responsabilité de plein droit ». The law of 19 May 1998 established a strict liability regime for manufacturers and furnishers of defective products, including defective medicines. The French strict liability regime, like the Anglo-American common law, is statutory and concurrent to the regime de droit commun (literally: common law regime, i.e. the regime of the French Civil Code). Similarly to the Anglo-American legal system the defective character of the product is not presumed. The similar defences, for example that the plaintiff was also at fault, can exonerate defendants under the strict liability statute.

See also: per se liability, strict liability
Rylands v. Fletcher, 3 H.L. 330; Clark-Aiken Co. v. Cromwell-Wright Co., lnc. (Mass.), 323 N.E.2d 876.


Accident law | Unfallrecht

A lay synonym for the law of tort. In the common law torts are either negligent or intentional but are always distinct from crimes. However that distinction, while typologically correct, is nevertheless somewhat illusory: While it is true that in the civil law however some delicts are also crimes, at common law for each intentional tort there was also a corresponding crime. Thus the distinction between tort and crime at common law was procedural and concerned the higher standard of proof in criminal cases where not only fortune but also liberty could be deprived from the defendant.


Act | Handlung / Positives Tun

External manifestation of will. A failure to act is an ommission: both may constitute negligence.


Action at law | Klage

Klage could also be translated as “complaint”, i.e. the initiation of a law suit. Actions can be either at law or in equity with somewhat different rules of procedure and only judicial fact-finding in equity.

Act of God |  Höhere Gewalt |  Force Majeure

An unforseeable natural disaster which cannot be prevented. Where the injury is uniquely due to an ‘act of God’ it is a defense against liability. ‘Acts of God’ will not however excuse delays in fulfilling contractual commitments because the duties assumed are negotiated – including the responsibility for losses resulting from natural disaster. Thus if the duty of the party is in tort acts of God will excuse their liability. But if the duty of the person is in contract then the contractor must have included a clause covering ‘acts of God’ even though the misfortune was unforseeable and could not have been prevented. Most insurance contracts include clauses to exclude liability of the insuror for ‘acts of God’.

A latin maxim applie: Actus Doi nomini facit injuriam: An act of God does wrong to no one – thus no one is responsible in tort for the result of an inevitable accident.

Acts of God can be distinguished in the common law from force majeure: Acts of god  are natural disasters whereas force majeure, at least in the common law,  consists of man made disasters.

See:
Watts v. Smith, D.C.App., 226 A.2d 160, 162
Middaugh v. U. S., O.C.Wyo., 293 F.Supp. 977, 980.


Höhere Gewalt

In german law is defined as an unforseeable unusual result which was brought about by irresistable force.  The German concept is thus similar to the common law and includes all manner of natural disasters and their consequences. (See, Bundesamt für Sicherheit in der Informationstechnik „Gefährdungskatalog Höhere Gewalt“
e.g. http://www.uni-saarland.de/verwalt/gshb99/g/g1.htm(1999)

Force Majeure:

Again the concept paralells that of höhere Gewalt and acts of god.

As we have already mentioned, force majeure as a concept does exist in the common law but is limited to man made disasters. In French law however force majeure encompasses all unforseeable disasters whether man made or not. Again unforseeability is the key element to the exclusion of liability which may arise via force majeure.

Actio personalis moritur cum persona / moritur doktrin

The principle that the cause of action of the victim of a tort died with the tort feasor. Statutorily remedied through wrongful death statutes.

See also: wrongful death, survival statutes
Mornand v. Twentieth-Century Fox Film Corporation, O.C.Okl., 37 F.Supp. 659, 652.
Humphries v. Going, O.C.N.C., 59 F.R.D. 583, 587.

Agent  | Vertreter | agent | agente

An agent is a person granted the authority of another to act on their behalf. The agent is subject to the control of s/he who grants the agency. The grantor of the power of agency is known as the principal, and s/he determines the extent of the powers of the agent. The agency may be gratuitous or compensated and the agency agreement may be oral or written.
http://dictionary.law.com/

Agente

Vertragspartei des Agenturvertrages,welche die Verpflichtung übernimmt,dauernd für einen oder mehrere Auftraggeber Geschäfte zu vermitteln oder in ihrem Namen und auf ihre Rechnung abzuschliessen,ohne zu den Auftraggebern in einem Arbeitsverhältnis zu stehen.
(Obligationenrecht,Art.418a Abs.1(SR 220)

agent

Partie du contrat d'agence qui prend à titre permanent l'engagement de négocier la conclusion d'affaires pour un ou
plusieurs mandants ou d'en conclure en leur nom et pour leur compte,sans être liée envers eux par un contrat de travail.
(Code des obligations,art.418a al.1(RS 220))

agent

Parte del contratto d'agenzia che assume stabilmente l'impegno di trattare la conclusione di affari per uno o più mandanti o
di conchiuderne in loro nome o per loro conto,senza essere vincolato ad essi da un rapporto di lavoro.

Codice delle obbligazioni,art.418a cpv.1(RS 220)

Related Concepts: Principle, Master, Servant, Respondeat Superior, Vicarious liability, Constructive liability

Agency | ? | Représentation |

The agreement between a principal to grant a power to dispose his or her affairs to an agent. As a general rule, whatever a man do by himself, except in virtue of a delegated authority, he may do by an agent: qui facit per alium facit per se.

Agents are entitled to actions against third persons for torts committed against them in the course of their agency.

Agents are liable for their acts, both to their principals and to third persons.

The liabilities of agents to their principals arise from a violation of their duties and obligations to the principal, by exceeding their authority, by misconduct, or by any negligence or omission, or act by which the principal sustains a loss. Agents may become liable for damages and loss under a special contract, contrary to the general usages of trade. They may also become responsible when charging a del credere commission.

Agents become personally liable to third parties when they act outside the scope of their authority, when they do not disclose their agency, when they make themselves personally responsible, e.g. by contracting in their own name,

See: agent, principle, master and servant
Rorton v. Doty, 57 ldaho 792, 69 P.2d 136, 39.


Bevollmächtigte

The German term for a person empowered as an agent is the Bevollmächtigte. A Bevollmächtigte holds a Mandat.


Agent / Mandataire


In French law, the concept of one empowered to transact business on behalf of another is also known as an agent. However an agent in France is not granted a power of agency. They French term for agency is mandat, and thus an agent is also a mandataire.

All-Or-Nothing Principle / Full compensation principle) | Alles oder nichts Prinzip / Grundsatz der Totalreparation  Full compensation principle | Principe de réparation intégrale

Principle that where one has committed a tort that they shall be liable for all the damages therefrom, even where others are also liable. This principle also holds that where there is no negligence there is no liability whatsoever.

The logic of this principle is that the tort-feasors will have claims against each other. This general principle is however being riddled with so many exceptions as to be practically swallowed by them.


Apportionment of damages / Apportionment of liability | Schadensverteilung / Haftungsverteilung

Because the logic of German tort law distinguishes between determination of liability and the extent of liability it must also distinguish between the apportionment of damages and the apportionment of liability. However in the common law the extent of damages and the determination of liability are in principle equivalent, with the extent of damages exactly matching the finding of liability. There is of course the exception of joint-tortfeasors where a tort-feasors liability may exceed or be less than the damages but even there the joint-tortfeasor has, unless statutorily modified, an action against his confederate.

At common law, in cases of joint tort feasors, the defendant could make a claim against any tort feasor for all of the damages. Statutes have in some cases modified this rule. (Rangolan, v. County of Nassau and Nassau County Sheriff's Department, 749 N.E.2d 178; 725 N.Y.S.2d 611).

Répartition des dommages-intérêts is the equivalent term in French law.

Assumption of Risk | handeln auf eigene Gefahr

The principle that a plaintiff can waive their rights in tort by contractually assuming the risk for the injuries which they may incur in cases of dangerous conduct. Assumption of risk is an affirmative defense to a charge of negligence wherein the plaintiff is asserted to have assumed the risk of the injury. This assuming of risk may be either express or implied. The defense typically arises in cases of inherently dangerous sports such as skydiving or other inherently dangerous activities. Ordinarily the assumption of risk is found through express clauses in contracts which waive the tortious liability of the organizer of the dangerous sport.

An interesting question is whether one can "assume the risk" in cases of strict liability (handeln auf eigene Betriebsgefahr), e.g. no-fault auto accidents. The better argument is no, since strict liability functions as a form of social insurance and as a way to avoid difficult burdens of proof between inequal opponents, viz products liability.


See: Clarke v. Brockway Motor Trucks, D.C.Pa., 372 F.Supp. 1342, 1347.
Turcone v. Fell, 502 N.E.2d 964 (N.Y. 1986)
See also: consent, informed consent


Assault |  Tätliche Beleidigung? Strafbare Handlung | Violence

Assault is the attempt to inflict an injury upon another whether recklessly or intentionally. No contact is necessary, a mere threat can suffice to constitute an assault. Assault can be most easily, if somewhat simplistically, be remembered as attempt at battery.

Assault (and battery) are rare instances where law French legal terms do not (at least since the revolution) have any paralell in the modern French law despite linguistic correspondence (assaut: to jump; battre: to beat). Instead we see the délit of violence, which comprises any act which provokes a physical or emotional (morale) disturbance – and thus includes threats as well as attempts and actual unwanted contact.

State v. Murphy, 7 Wash. App. 505, 500 P.2d 1276, 1281.

See: battery, intentional torts


Strafbare Handlung

In German law, an act which injures the body or health of a person’s life or limb is punishable as a strafbare Handlung.


Violence

Violence is an act, whether deliberate or not, which induces in the victim a physical or emotional disturbance with damaging effects on his person or goods.


Assets | Vermögen | Patrimoine

The French concept of patrimoine is our point of departure as it is most logical. All persons have a patrimoine which consists of créances (credits) and avoirs (debits); there are of course non pecuniary elements of patrimoine: yet patrimony (the nearest English term, which must be distinguished from marriage, i.e. matrimony). The créances (credits) and avoirs (debts) must be balanced to determine the “net worth” of the person, in material terms. This notion of “net worth” or “capital” (whether personal or real) corresponds to the German concept of Vermögen, which can be translated as fortune.


Autonomy

The quality or state of being self-governing, especially the right of self-government.

Legally autonomy can refer either to the legal capacity of a physical person or to the interpretative independence of a branch of the law, for example the notion that tax law or constitutional law should have unique canons of construction and rules of interpretation from other branches of law.

Green v. Obergfell, 13 App.O.C. 298, 121 F.2d 46, 57.
See: capacity, children


Avoidable consequences rule | Schadensminderung

This rule is the mirror of the rule of consequential damages (Folgeschaden). Although the plaintiff has a right to all damages stemming from the defendants tortious conduct, they also have a duty to take reasonable steps necessary to prevent consequential damages.

Baglio . N. Y. Central R. Co., 344 Mass. 14, 180 N.E.2d 798.
See: intervening and superseding cause, proximate cause

Battery | Strafbare Handlung gegen Leib und Leben | Violence:

Harmful or offensive contact with the preson or another or with something closely appurtenant thereto, resulting from an act intended to create such contact or the in the apprehension thereof directed at the other or at a third person. Battery can either be the result of a negligent or intentional act.  Battery may be justified for example as self defence, in aid of an authority in law or under process of a court of justice.

See: assault

In German Law: Strafbare Handlung gegen Leib und Leben

Die darin besteht, dass eine Person einen Menschen an Körper oder Gesundheit schädigt oder gegen diesen eine Tätlichkeit verübt. (VE)Schweiz.Strafgesetzbuch Art.122 RandT(SR 311.0); c.f. Körperverletzung

In French Law: Violence

Code pénal suisse at.122 tit.mag.(RS 311.0);d'après source;at.123,125 et 126;(EXP)d'après source;at.122 tit.mag.,123
tit.mag.,125 tit.mag.et 126 tit.mag.

Infraction contre la vie et l'intégrité corporelle commise par quiconque porte atteinte à l'intégité corporelle ou à la santé d'une autre pesonne ou qui se live sur elle à des voies de fait.
-(VE)Code pénal suisse at.122 tit.mag.(RS 311.0) ; c.f. lésion corporelle


In Italian Law

Reato contro la vita e l'integrità della persona commesso da chiunque cagiona un danno al corpo o alla salute di una persona o commette vie di fatto contro una persona.
(VE)Codice penale svizzero,art.122 marg.(RS 311.0)
c.f.; lesione personale

-Codice penale svizzero,art.122 marg.(RS 311.0);secondo fonte;art.123,125 e 126;(EXP)secondo fonte;art.122 marg.,123, 126 marg.
{DOM}  diritto penale ordinario e militare

Breach of Contract | Vertragsverletzung

Failure without legal excuse to perform any promise which forms a part or the whole of a contract leading to a right of damages on the part of the non-breaching party.
See: intentional interference with prospective advantatge

-B-

Bivens Claim (constitutional tort):

A Bivens claim, named for Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), is a tort created by judicial interpretation of the constitution which is not within the terms of the Federal Tort Claims Act. See 28 U.S.C. S 2679(b)(2)(A); 42 U.S.C.A. § 1983.

Prior to Bivens the remedies against constitutional violations by federal agents and authorities were few and weak.


E.g. A Bivens claim would allege constitutional violations against federal employees as individuals.

Burden

Burden of production / burden of going forward with the evidence  | Behauptungslast/Darlegungslast/ Beweisführungslast | charge de la preuve | onere della produzione della prova:

The duty of a party to present sufficient evidence to warrant a favorable finding on that issue or fact in order to avoid dismissal on a directed verdict. Once a movant has made a prima facie showing, i.e. a facial proof of his or her claim, the non-moving party must present evidence to rebut the assertion. Thus while the burden of proof remains on the originally moving party, the burden of production shifts to the non-moving party who must then present evidence which may or may not convince the finder of fact but which is sufficient to avoid a directed verdict, i.e. to place into doubt the position of the movant. The burden of going forward then shifts back to the moving party. The determination that the directed verdict is avoided is not however tantamount to an admission of the fact asserted but merely prevents a procedural disposition of the substantive claim.

See also: burden of proof
On burden of production see: Stuart v. D. N. Kelley & Bon, 331 Mass. 76, 117 N.E.2d 160.

Barnes v. U.S., 412 U.S. 837, 846, 93 S.Ct. 2357, 2363, 37 L.Ed.2d 380.  explains clearly the distinction between the burden of production and the burden of proof.


Beweisführungslast

Pflicht,das Vorhandensein einer behaupteten Tatsache zu beweisen,wenn daraus Rechte abgeleitet werden.
nach Schweiz.Zivilgesetzbuch,Art.8(SR 210)
Thesaurus des Eidg.Versicherungsgerichts(1997)

Charge de la Preuve

Devoir en vertu duquel une partie doit prouver les faits qu'elle allègue pour en déduire son droit.
-d'après Code civil suisse,art.8(RS 210)

obligation de prouver les faits allégués
-Thésaurus du Tribunal fédéral des assurances(1997)

onere della produzione della prova

Obbligo di dovere fornire la prova imposto a chi vuol dedurre il suo diritto da una circonstanza di fatto da lui asserita.
secondo Codice civile svizzero,art.8(RS 210)

Tesoro del Tribunale federale delle assicurazioni(1997)

Burden Of Proof | Beweislast | Charge de la Preuve | onere della prova / onere probatorio:

The burden of proof is the duty of one party in a lawsuit to prove the point which they assert. Ordinarily the movant bears the burden of proof, expressed in the maxim "actor incombit probari".

Different levels of proof are required depending on the type of case. In a civil case the plaintiff must prove the elements of their claim by a "preponderance of evidence" i.e. that their assertion is more likely than not true. In a criminal trial the burden of proof required of the prosecutor is to prove the guilt of the accused "beyond a reasonable doubt," a much more difficult task. Unless there is a complete failure to present substantial evidence of a vital fact (usually called an "element of the cause of action"), the ultimate decision as to whether the plaintiff has met his/her burden of proof rests with the jury or the judge if there is no jury. The burden of proof in some issues it may shift to the defendant if s/he raises a factual issue in defense, such as a claim that s/he was not the registered owner of the car that hit the plaintiff, so the defendant has the burden to prove that defense. If at the close of the plaintiff's presentation s/he has not produced any evidence on a necessary fact (e.g. any evidence of damage) then the case may be dismissed without the defendant having to put on any evidence.
Law.com

The defendant has the opportunity to submit evidence to rebut the plaintiff's case. The defendant will however have the burden of proving the rebuttal and also of any affirmative defenses.

In criminal cases every man is presumed to be innocent until the contrary is proved. Thus the burden of proof rests on the prosecutor unless a different provision is expressly made by statute.

On burden of proof see: Ambrose v. Wheatley, 321 F.Supp. 1220, 1222.

Barnes v. U.S., 412 U.S. 837, 846, 93 S.Ct. 2357, 2363, 37 L.Ed.2d 380.  explains the distinction between the burden of production and the burden of proof.

And Hearing of Evidence | Beweisaufnahme | administration des preuves / audition des preuves:

The court procedure wherein the evidence is presented before the judge (and if applicable the jury) for the determination of the truth or falsehood of each fact asserted.

-C-

Capacity  | Rechtsfähigkeit / Geschäftsfähigkeit | capacité juridique |  capacità giuridica:

Legal capacity is the abilitiy of a person, whether natural or artificial, to perform civil acts . This concept is in fact somewhat confused because the notion of legal existence is confounded with the notion of capacity to alienate. Legal capacity in German law is clearly divided into two concepts: legal personality (Rechtsfähigkeit) and legal capacity (Geschäftsfähigkeit). While all legal persons enjoy rights and bear duties, only persons posessing legal capacity can voluntarily acquire or alienate rights and duties.

Also see: children
Johnson v. Helicopter & Airplane Services, 404 F.Supp. 726, 729.


Rechtsfähigkeit (suggested translation: enjoyment of civil rights | jouissance des droits civiques | esser titolare di diritti civili)

Ist die Fähigkeit, Träger von Rechten und Pflichten zu sein. Rechtsfähig sind alle natürlichen und juristischen Personen. Die Rechtsfähigkeit eines Menschen beginnt mit der Vollendung der Geburt (§ 1 BGB). Sie endet mit dem Tode des Menschen. Die Leibesfrucht ist also noch nicht rechtsfähig, wird aber durch eine Reihe von gesetzlichen Vorschriften bereits geschützt und ist darüber hinaus z.B. schon erbfähig (§ 1923 Abs.II BGB). Die Rechtsfähigkeit besteht unabhängig von der Deliktsfähigkeit und Geschäftsfähigkeit. So kann z.B. ein Kleinkind bereits Besitzer eines Vermögens sein, obwohl es noch gar nicht geschäftsfähig ist.

aus: E. Götze, "Rechtslexikon",
Fischer – Heymanns

Geschäftsfähigkeit

Ist die Fähigkeit, Rechtsgeschäfte selbständig und vollwirksam vorzunehmen. Der Gesetzgeber geht davon aus, daß grundsätzlich alle Menschen geschäftsfähig sind und daß mit Eintritt der Volljährigkeit die uneingeschränkte Geschäftsfähigkeit gegeben ist. In den 113 BGB sind deshalb nur die Einschränkungen bzw. Ausnahmen von der vollen Geschäftsfähigkeit geregelt. Geschäftsunfähig sind nach § 104 BGB Kinder bis zur Vollendung des siebenten Lebensjahres und die an einer krankhaften Störung der Geistestätigkeit leidenden Personen (es muß sich aber um ein dauerhaftes Leiden handeln und nicht nur um eine vorübergehende Störung).

Willenserklärungen, die Geschäftsunfähige abgeben, sind nichtig (§ 105 BGB). Nichtig sind auch die Willenserklärungen, die Bewußtlose oder vorübergehend Geistesgestörte abgeben.

Beschränkt geschäftsfähig nach § 106 BGB sind die Minderjährigen, die das siebente Lebensjahr bereits vollendet haben, aber noch keine achtzehn Jahre alt sind. Rechtsgeschäfte, die ein Minderjähriger vornimmt, sind nur dann wirksam, wenn sie dem Minderjährigen lediglich einen rechtlichen Vorteil bringen (z.B. die Annahme eines Geldgeschenks). Alle anderen Rechtsgeschäfte sind in der Regel schwebend unwirksam, bis sie vom gesetzlichen Vertreter genehmigt oder abgelehnt werden. Lehnt der gesetzliche Vertreter die Genehmigung (siehe Zustimmung) ab, sind die vom Minderjährigen vorgenommenen Rechtsgeschäfte von Anfang an nichtig (109 BGB). Allerdings sind solche Geschäfte des Minderjährigen wirksam, die er mit Mitteln seines Taschengeldes oder mit Mitteln, die ihm zur freien Verfügung bereitgestellt worden sind, vornimmt. Dies  regelt der sogenannte Taschengeldparagraph (§ 110 BGB). Betreibt der Minderjährige mit Genehmigung des gesetzlichen Vertreters und des Vormundschaftsgerichts ein Erwerbsgeschäft, so kann er natürlich im Rahmen dieses Geschäftes auch wirksam Rechtsgeschäfte vornehmen. Eine solche Ermächtigung kann der gesetzliche Vertreter nur mit Genehmigung des Vormundschaftsgerichtes wieder zurücknehmen (§ 112 BGB). Ist der Minderjährige von seinem gesetzlichen Vertreter ermächtigt, in ein Dienst- oder Arbeitsverhältnis zu treten, so ist er bezüglich aller Rechtsgeschäfte, die im Zusammenhang damit stehen, voll geschäftsfähig (§ 113 BGB).

Nach Einführung des neuen Betreuungsrechts im Jahre 1991 ist die Entmündigung weggefallen. Geistig Erkrankte werden nicht mehr entmündigt, sondern unter Betreuung gestellt (§§ 1896ff. BGB). Hinsichtlich der Geschäftsfähigkeit stehen sie einem Minderjährigen gleich.

aus: E. Götze, "Rechtslexikon",
Fischer – Heymanns


Capacité juridique

La capacité est le pouvoir de conclure un acte juridique valable ayant pour conséquence d'engager le patrimoine de celui qui le souscrit.

Bien qu'elles soient capables de faire d'autres actes, il est certains engagements que pour des motifs d'ordre public et de moralité, certaines personnes ne sont pas habilitées à contracter, par exemple, le mariage entre proche parents. Le droit français n'a pas trouvé d'expressions propres pour désigner ces situations.On parle donc, indifféremment d'incapacité, s'agissant des mineurs ou des majeurs qui font l'objet d'un protection légale, et d'incapacité dans le cas où la loi interdit à certaines personnes de donner ou de recevoir des dons ou des legs lorsque le donateur et le donataire se trouvent entre eux dans des rapports qui font présumer une fraude ou une pression sur le testateur ou sur l'auteur de la donation.( voir les articles 903 et suivants du Code civil )

Textes : C.civil art.216,388 et s., 481, 488 et s., 902 et s. , 978 et s., 1028 et 1030 , 1039 et ., 1123, 1238, 1990, 1398 et 1399, 2115, 2157, NCPC, art 197, 1243 et s., 1271 et s.,
http://perso.club-internet.fr/sbraudo/dictionnaire/cadre.html


Causation

The notion that one event leads to another. Law distinguishes between remote causes which while necessary were not sufficient and material causes i.e. necessary and sufficient causes. Those causes but for which the accident would not have occurred are necessary but not always sufficent. When a cause is both necessary (legal causation, i.e. sine qua non causation) and proximate, i.e. sufficient, that is legal causation, then a tort will exist in common law. See: prima facie tort.

Cause, Proximate / Legal Cause | Näheste verursachung( ?) |  cause proche /   cause prochaine | causa prossimale:

A causal event which was both necessary and sufficient to result in injury. There is some confusion in the field as to the distinction between factual and legal causation. Factual causation is properly called cause in fact or causa sine qua non. Legal causation is sometimes refered to as proximate causation. Though a cause be necessary, and thus a cause sine-qua-non it is not always sufficient. Careful use of language here can avoid much confusion. The confusion arises because of complex fact patterns. It can be dispelled with terminological discipline. While all results require a necessary cause, not all causes are sufficient, and in cases where there are several sufficient causes not all causes are necessary since the other cause/s would be sufficient. For example, imagine a man who takes his two friends hunting. He drives them to the site and leaves. Each of them then negligently shoots the decedent plaintiff mistaking him for a wild animal. Each wound would kill the decedent: each is thus a sufficient cause. However as they are independent causes neither is necessary for the occurrence of the other. As to the driver: his causation is clearly necessar but is itself insufficient. Thus even were he negligent there would be no liability for his causation while factual, i.e. sine qua non, is not also legal, i.e. proximate. Both hunters will be held liable jointly and severally but may also have a claim against each other for indemnification.

cause proche /   cause prochaine

événement anormal se trouvant le plus proche de l'événement accidentel dans une chaîne causal
Arbejdslivets terminologi(HHK)

causa prossimale
Prof.Piero Mognoni,Università di Milano


Cause in fact / But-for causality  | condicio sine qua non formel / sine qua non

The principle that the tort feasors action must have had a factual cause, i.e. a material cause, in bringing about the defendants misfortune. Note that the presence of material causation (cause in fact) is a necessary but insufficient condition to a determination of tortious liabilty. The defendant's act must also have been a proximate cause (also known as legal cause) - a sufficiently remote causa sine qua non will not lead to liability in tort.

On causa sine qua non see:
Hayes v. Railroad Co., 111 U.S. 228, 4 S.Ct. 369, 28 L.Ed. 410.
And for the legally synonymous cause in fact:
Medallion Stores, Inc. v. Eidt, Tex.Civ. App., 405 S.W.2d 417, 422.

Chattel | Bewegliche körperlicher Gegenstand | Propriété Mobilier

Movable things; personal property. Chattel are material objects, and not merely abstract rights or other non-corporeal property.

Children, Minor:

A person who while recognized by the law as having rights and duties has restricted rights due to their age. Minor children are under 21 years of age at common law but statutes have generally reduced the age of majority to 18.

Both the German and French law impute greater responsibility on children and on parents for the torts of minor children.

Haftung der Kinder

Grundlagen der Haftung: Bürgerliches Gesetzbuch (BGB § 823 Absatz 1) Wortlaut: "Wer vorsätzlich oder fahrlässig das Leben, den Körper, die Gesundheit, die Freiheit, das  Eigentum oder ein sonstiges Recht eines anderen widerrechtlich verletzt, ist dem anderen zum Ersatz des daraus entstehenden Schadens verpflichtet."

Einschränkung:
  · Kinder unter 7 Jahren können nicht haftbar gemacht   werden
  · Kinder bzw. Jugendliche von 7-18 Jahren können nur dann begrenzt haftbar gemacht werden, wenn sie  zur Tat die erforderliche Einsicht hatten und die  schädigenden Folgen Ihres Tuns erkennen konnten.
  · Das gleiche gilt für geistig und körperlich  Behinderte, sowie für Taubstumme

ABC der Privaten Haftpflichtversicherung
http://www.aspect-online.de/prodinfo/abc_phv/haftung.htm


Beschränkte Haftung der Eltern

(1) Die Eltern haben bei der Ausübung der elterlichen Sorge dem Kind gegenüber nur für die Sorgfalt einzustehen, die sie in eigenen Angelegenheiten anzuwenden pflegen.

(2) Sind für einen Schaden beide Eltern verantwortlich, so haften sie als Gesamtschuldner.

Bürgerliches Gesetzbuch
Buch 4 - Familienrecht (§§ 1297 - 1921)
Abschnitt 2 - Verwandtschaft (§§ 1589 - 1772)
Titel 5 - Elterliche Sorge (§§ 1626 - 1698b)

§ 1664

Responsabilité

In French law, parents are liable for the torts of their children.

Le Code civil, dans Les articles 1382 à 1386, pose le principe de la responsabilité civile délictuelle, c'est-à-dire celle qui découle d'une faute ayant entraîné un dommage qui doit être réparé. L'article 1382 dispose, en effet/ «Tout fait quelconque de l'homme qui cause à autrui un dommage oblige celui par la faute duquel il est arrivé à le réparer.» D'autre part, l'article 1383 précise que «chacun est responsable du dommage qu'il a causé non seulement par son fait, mais encore par sa négligence et son imprudence». Autrement dit, la «faute» retenue peut être constituée non seulement par un fait proprement dit mais aussi par une simple négligence ou une imprudence. Enfin, il existe une autre forme de responsabilité civile plus particulière, qui ressort des dispositions de l'article 1384, alinéa 1: «On est responsable non seulement du dommage que l'on cause par  son propre fait, mais encore de celui qui est causé par le fait des personnes dont on doit répondre, ou des choses que l'on a sous sa garde.»


La responsabilité civile

Responsabilité sans faute personnelle donc, responsabilité «du fait des choses», qui vise le père et la mère qui disposent du droit de garde et qui  sont solidairement responsables des dommages causés par leurs enfants mineurs; les «maîtres et les commettants» qui doivent répondre du dommage causé par leurs domestiques et préposés; les «instituteurs et artisans» qui sont responsables du dommage causé par leurs élèves ou apprentis. La responsabilité ainsi décrite ne sera mise en jeu que si les père et mère et les artisans ne prouvent pas qu'ils n'ont pas pu empêcher le fait qui entraîne cette responsabilité.
Encyclopédie
http://fr.encyclopedia.yahoo.com/articles/sy/sy_978_p0.html

Children and attractive nuisance-

A potentially harmful object inviting or interesting to a child that would lure the child to investigate. Landowners are strictly liable for attractive nuisances.

Civil Law / Continental Civil Law / Continental Law | Kodifiziertes Privatrecht (in der Tradition des Codex Justinian)

No greater confusion exists for both layman and lawyer than in the innocent sounding terms “common law” and “civil law”. Both terms are polysemic and must be qualified with adjectives otherwise confusion is certain.

The common law corresponds roughly to the french notion of “droit commun”. It is the customary i.e. traditional law of England as expressed in the decisions of judges. Just as “droit commun” may be derogated by statute so to can the common law, that is statutes may abrogate or supplement the common law and much of modern law is statutory.

Civil law must first be distinguished from civil procedure – they are very different concepts. The civil law refers to continental European law in its narrowest sense the private law of torts and contracts and accessory laws appurtenant thereto. This is the sense generally ascribed to the term in French. However in the English sense the term is broad and refers to the system of statutory law and interpretation via non-binding judicial precedent and strongly influenced by academia which characterises the law of the continent of Europe.

These confusions arise not only due to similar and polysemic terms but also due to the fact that both the common law and civil law are derived from Roman law with however many local customary deviations. Thus while these terms often confuse their ultimate meanings stem from the same source.

Civil Liability | Privatrechtliche Haftung

Liability in tort for negligent, reckless, or imputed liability due to strict negligence. Liability not on the bases of private contract or other promise but because of social relations.

Class Action Lawsuit

A lawsuit instituted by one person or group of persons on behalf of themselves and all other persons similarly situated. It arises for example in the case of mass torts and toxic torts (q.v.).

See also: Epedemiological proof, mass tort, toxic torts

Clear and Convincing Evidence

A standard of proof somewhat higher than the ordinary civil standard of preponderance of evidence/beyond a reasonable doubt, yet lesser than the standard of a criminal trial where proof is required beyond a reasonable doubt.


Constitutional Tort

See Bivens claim

Company | Handelsgesellschaft | Société

Company law generally permits shareholders in the company limited liability for the torts of the company. Thus company’s must be distinguished from partnerships or other unlimited liability companies.

Collateral Source Rule : ~Vorteilsausgleichung

The collateral source rule holds that where a plaintiff is compensated by a third party that third party compensation shall not be used to reduce the award to the plaintiff.
See: Cortland & Packard v. Superior Court for County of Los Angeles, 59 Cal.App.3d 140, 131 Cal. Rptr. 418, 421.

Common Carrier | Oeffentlicher Transportunternehmer | transporteur public | imprenditore di trasporto pubblico:

A common carrier is a transporter who offers their services to the general public over a definite route and according to a regular schedule.

Common carriers are ordinarily liable for all property losses which occur to the objects they are entrusted with unless they can prove that the loss was the result of an act of  God or the owner of the property. Common carriers are liable to use utmost care in the transportation of passengers but if non-negligent will not be required to act as insurors of their passengers.
Tilson v. Ford Motor Co., D.C.Mich., 130 F.Supp. 676, 678.

Comparative fault:

A modern doctrine of tort law which permits plaintiff and defendant to compare their liability for the accident. The plaintiffs award for damages will be reduced  in proportion to their negligence. See e.g.

Huerta v. New York City Transit Authority,
735 N.Y.S.2d 5; 2001 N.Y. App. Div. LEXIS 12139
(comparative fault reducing plaintiff’s award in damages).

The rule of comparative fault replaces the all-or-nothing rule (q.v.). See contributor negligence.

Compensatio lucri cum damno / Set-off

The principle that advantages (positive externalities) which accrue to the victim of the defendant's torts shall offset the award in damages which the defendant shall receive to compensate their loss. This is similar to the collateral source rule but not the same since the diminution of the damages is not due to some exteranl source but due to the positive effect of the damage. It is also similar to, but not exactly the same as the Bereicherungsverbot / Prohibition of enrichment to the plaintiff. Both prevent overcompensation but using different methods. Compensatio lucri cum damno looks at the benefit to the plaintiff in measuring each element of the damages, whereas the prohibition of enrichment looks at the entire damage award and compares it with the entire damages suffered.

For example, the tortfeasors action destroys an old house and shed. The shed could not be repaired and was to be removed: the cost of removing the shed would be deducted from the damages for destroying the house.

Compensation, equitable, fair | Billige Entschädigung in Geld

The German principle of Billige Entschädigung in Geld holds that losses of a non pecuniary nature, i.e. losses for pain and suffering, shall only be compensated to a reasonable degree. This principle of law does not express itself as exactly in the common law, and as a result leads to excessive damage awards. Judicial over-compensation at common law is however sometimes corrected by statutory ceilings on damages.

On compensation see: Hughson Condensed Milk Co. v. State Board of Equalization, 23 Cal.App.2d 281, 73 P.2d 290, 292.

Compensation in kind | Naturalrestitution | Restitution in natura / : Restitution en nature

The remedy to the victim of the tort of replacement of that which was destroyed or removed by the tort feasor. Rather than restoring the victims loss with money the loss is repaired by restitution of the thing injured. E.g. a court orders a defendant to repair the car of the victim.

Natural restitution seeks to restore the injured object to the condition it had prior to injury.

Compensation | Ausgleich

One of the grand rationales of tort law. The remedy of the defendant shall be measured by their loss (rather than by the benefit to the plaintiff or by the social desirability of that compensation or out of a desire to punish or deter).

Compensatory damages : Immaterialler Einbussen und Vermögensschäden

Compensation seeks to remedy not merely the injured economic value but also the pain and suffering to the defendant. The former is known as pecuniary losses (Vermögenscschäden) and the latter as non-material damages (Immaterieller Einbussen)
See: Northwestem Nat. Cas. Co. v. McNulty, C.A.Fla., 307 F.2d 432, 434.

Compensation in-kind | Naturalrestitution  | en nature:

Restitution or compensation of the thing injured in a form other than money but not including the right of satisfaction. E.g. a defendant who has lost their crop due to a neighboring farmer’s negligence might be compensated in grain rather than cash.

Concurrent tortfeasor / Joint tortfeasor | Gesamtschuldner  | co-auteur du fait dommageable / auteur conjoint de délit:

Two or more persons whose negligence brings about the misfortune of another. At common law each of the joint tort-feasors is liable in the entirety for the damages to the plaintiff. Though the plaintiff cannot recover more than their damages they can choose to recover all or part of their damage from any of the joint tort-feasors regardless of their actual proportion of liability for the accident. Joint tort-feasors however will have an action against each other if the injury committed by one was less than the restitution that they paid. Some jurisdictions tend to abandon this rule in favor of allowing recovery against either tort feasor only to the extent of the injury they inflict.

See, e.g. Fancyboy v. Alaska Village Electric Cooperative, 984 P.2d 1128; 1999 Alas.
“By popular initiative, Alaska has abolished the system of joint and several liability, in which each tortfeasor could be fully liable for the injured party's damages and seek contribution or indemnity from any other joint tortfeasor. See Robinson v. Alaska Properties and Inv., Inc., 878 F. Supp. 1318, 1321 (D. Alaska 1995); Benner v. Wichman, 874 P.2d 949, 955 (Alaska 1994). Thus, a plaintiff "[can] only recover from each tortfeasor in the proportion that his fault played to the total fault of all the persons and entities at fault including the plaintiff herself."
Robinson, 878 F. Supp. at 1321.

Also see: Radford-Shelton & Associates Dental Laboratory, lnc. v. Saint Francis Hospi- tal, lnc., Okl.App., 569 P.2d 506, 509.

American Tobacco Co. v. Transport Corp., O.C.Va., 277 F.Supp. 457, 461.

Bowen v. Iowa Nat. Mut. Ins. Co., 270 N.C. 486, 155 S.E.2d 238, 242.

Consent | Einwilligung | Consentement:

The free choice of a person posessing their mental faculties to undertake an act.

Consent can be express or implied. It is express when manifested with words whether written or oral and implied when not expressed by words but by actions.

Fraudulent consent is no consent and so to is the consent of those who are legally not in posession of their faculties due to youth, age, or mental infirmity.

Consent is an affirmative defense against an accusation of  tortious conduct.

Einwilligung

Erforderliche Zustimmung zu einem von einer anderen Person vorzunehmenden Rechtsgeschäft,wenn diese vor dessen Abschluß erteilt wird
(ablers Lex des Wirtschaftsrechts,1972)
EuroDicAutom

Consentement

Le consentement peut se définir comme la volonté d'engager sa personne ou ses biens, ou les deux à la fois . Cette approbation peut conditionner la validité de l'engagement d'une autre , comme c'est le cas du mariage des mineurs .  Cette adhésion est dite "expresse" , lorsque la volonté de celui qui s'engage se manifeste d'une manière apparente , par exemple par la signature d'un écrit ou par une déclaration faite en public , et elle est dite " tacite" quand l' accord de la personne résulte d'une attitude non équivoque de laquelle on peu le déduire comme la prise de livraison d'une chose achetée.

Sa preuve est quelquefois soumises à des conditions de formes destinées à constituer une preuve irréfutable de l'engagement , par exemple lorsque la validité d'un acte est subordonnée à sa réception par un notaire tel qu'un legs , ou par le Maire de la Commune lorsqu'il est appelé à constater l'accord des futurs époux à leur mariage .  Pour esxprimer cette notion, les textes juridiques utilisent des expressions équivalentes telles que , "Acceptation", "Acquiescement" , " Agrément",ou "Ratification" qui cependant ,s'ils ont un sens approchant n'est cependant pas toujours identique à la signification du mot "consentement ".

Textes
Code civil art. 230 et s.,246, 345 et s,390, 1109, 1146 et s., 1690, 1257, 1261, 1690, 1985 .

autorizzazione / assenso

consenso dato da un terzo ad un accordo intervenuto fra due o più altre parti
(Dott Coppola,Cons Min Lavoro e Previdenza Sociale,Roma)
EuroDicAutom

Consent: Informed  | aufgeklärte Einwilligung nach Aufklärung | consentement éclairé | assenso informato:

Informed consent is that consent obtained only after  full disclosure, i.e. after informing the defendant of the medical risks and benefits and alternatives of a medical procedure proposed by  a physician. It is a heightened form of consent applied in the field of medical practice to protect lay persons. See, e.g.
Tenuto v. Lederle Laboratories,
1997 N.Y. LEXIS 3219, *; 90 N.Y.2d 606;
687 N.E.2d 1300; 665 N.Y.S.2d 17

Consequential damages | Folgeschäden

Damages which arise not immediately after the initial injury but thereafter yet as a result of the tort. E.g. as a result of a libel the plaintiff cannot marry and so will not be an heir of their spouses parents. The lost inheritance could be seen as a consequential damage.

See: Richmond Redevelopment and Housing Authority v. Richmond Redevelopment and Housing Authority v. Laburnum Const. 195 Va. 827, 80 S.E.2d 574, 580.

Consortium, Loss of | Verlust des Liebespartners | privation de compagnie conjugale:

The loss of the ability to have normal sexual relations with one’s spouse, but also the loss of their services and companionship. It is a damage with both economic, though possibly unremunerated, and non-economic elements  - and one more example of damage inflation in the common law of torts.
See: Deems v. Westem Maryland Ry. Co., 247 Md. 95, 231 A.2d 514, 517.

Constitutional Torts | Verletzung verfassungsrechtlicher Freiheiten

While Germany and France have specialized courts for hearing constitutional cases this is not the case in the U.S. See Bivens Claim.

Constitution | Grundgesetz/Verfassung | Loi Fondamentale / Constitution:

Latin. constituere, to make to stand together, to establish. Originally, an important decree or edict. Later, the laws and usages which gave a government its characteristic features.

The fundamental law of the state (e.g., Grundgesetz)

The constitution of the state may refer literally to the legal arrangements which characterise the state or metaphorically to the institutions and relations of the organs of the state across time. We concern ourselves here with the former, that is the literal legal definition.

In the common law constitutions are termed either written or unwritten. The United Kingdom has an unwritten or customary constitution, whereas that of the United States is written. A written constitution can be the basis of judicial review, and under British rulings since Coke, an unwritten constitution cannot be the basis of judicial review.

Verfassung

die Gesamtheit der geschriebenen oder ungeschriebenen Rechtsnormen,welche die Grundordnung eines Staates festlegen

loi constitutionnelle / loi fondamentale / constitution

  loi ou ensemble de lois fondamentales qui règle le mode de délégation ou d'exercice de la souveraineté nationale, la forme du  gouvernement, les attributions et le fonctionnement des pouvoirs de l'Etat ..

Contra bonos Mores / Against Good Morals | Sittenwidrig

No contract may be made which is against good morals. Such contracts are void as against public policy.

Contributory negligence | Part de responsabilité de la victime dans un accident / Négligence concurrente / Faute de la victime / Imprudence concurrente / négligence concurrente | Mitgefährdung :

Contributory negligence is that situation where the plaintiff’s own negligence helped bring about the tort. In most American jurisdictions it has been replaced with the doctrine of comparative fault. But in those jurisdictions where it survives, a finding of contributory negligence on the part of the plaintiff will operate as a complete bar to he plaintiff’s claim. Contributory negligence is an affirmative defense which the defendant must plead and prove to prevail.

See also: proportional liability

Honaker v. Crutchfield, 247 Ky. 495, 57 S.W.2d 502.
Li v. Yellow Cab Co. of California,
13 Cal.3d 804, 119 Cal.Rptr. 858, 532 P.2d 1226.
Cowan v. Dean,
81 S.D. 486, 137 N.W.2d 337, 341

Corporation | Kapitalgesellschaft | Société Anonyme (à responsabilité limité)

A legally recognized person having a legal existence independent of its shareholders, officers, and employees. While the employees and officers may be liable for negligence the shareholders of the corporation are limited in liability for the torts of the corporation to the extent of their investment in the corporation.

Corrective Justice | Gerechtigkeit | La Justice Corrective:

Justice has been defined as giving each man his due. Justice may be distributive or commutative. Distributive justice distributes rewards and punishments to each one according to his merits, observing a just proportion by comparing one person or fact with another, so that neither equal persons have unequal things, nor unequal persons things equal. It is also known as geometric justice.

Commutative justice renders to every one what belongs to him, as nearly as may be, or that which governs contracts. It is also known as arithmetic justice.

Internal justice is  the conformity of our will, and external justice the conformity of our actions to the law, at least where the law is just.


Creation of Risk | Gefährdung ???
Custom / Customary Law | Gewohnheitsrecht | Droit Coutumièr :

A usage which has acquired the force of law.  When the usage is public, peaceable, uniform, general, continued, reasonable and certain, and has lasted since time immemorial it acquires the force of law and is known as a custom. While statute can and does replace prior custom, statutes must be interpreted in light of custom when there is doubt as to their meaning: optima est legum interpres consuetudo. A custom derives its force from the tacit consent of the legislature and the people,

Customs can be general or particular customs. Particular customs are lex loci Particular customs are those which affect the inhabitants of some particular districts only.  The common law is an example of general custom, as is public international law.


Consuetudo.
Latin. Custom; usgage; practice.
Consuetudo est altera lex.
Custom is another law.
Consuetudo interpres legum.
Custom is the expounder of laws.
Consuetudo loci observanda.
 The custom of the place is to be conformed to.

-D-

Damages
Damages | Schadensersatz (in Geld) / Schäden

Pecuniary compensation or indemity which may be recovered in the courts by any person who has suffered loss detriment or injury.

A general term for the remedy of a tort. Normally limited to monetary damages on a theory of compensation for the injured interest (either as valued by tort feasor or victim), but may also rely on a theory of retribution, deterrence/prevention or emotional satisfaction. In its broadest sense damages can imply remedies other than monetary.

There are a variety of types of damages. The various terms and their meanings are discussed below:

Damages, Actual | Konkreter Schaden | Indemnisation effective


Damages awarded for calculable material injury; Damages deemed to compensate the injured party for losses sustained as a direct result of the injury suffered

Damages, Civil / Constitutional tort

Injuries sustained either to one's rights as a citizen of a State and of the United States, or else to his rights as a member of a family. See: Bivens Claim

Damages, compensation for | Schadensersatz | dommages et intérêts |   risarcimento dei danni

The compensation which the law will award for an injury done and thus a synonym for damages

Damages, Constructive

Those damages imputed in law from an act of wrong to another person. Such damages are imputed, i.e. they may or may not be related to the actual damages.

Damage, Compensatory (opp. To punitive damages) | Ersatz eines eingetretenen (materillen oder immateriellen) Schadens Ausgleichsentschädigung ? |  dommages-intérêts compensatoires / indemnité compensatrice | premio di compensazione

Compensatory damages are intended to remedy the actual damages caused by the party against whom they awarded. Thus compensatory damages are an award of money intended to be exactly equal to the injury of the victim and nothing more. Yet they may include the abstract compensation for pain and suffering. Nevertheless compensatory damages do not include punitive damages (q.v.)  .

Damages, Consequential | Folgeschaden (aus Primärschaden)/ Indirekter Schaden | dommage consécutif / dommages secondaires / dommage indirect

Those damages which do not arise immadiately out of the plaintiff’s tort but which nevertheless are caused by the tort.
See: mitigation of damages, pure economic loss

Damages, Direct  | dommage direct

Those damages which arise initially or primarily as a result of plaintiff’s tort.
See: Roanoke Hospital Ass'n v. Doyle & Russell, lnc., 215 Va. 796, 214 S.E.2d 155, 160.

Damage, Divisible | teilbarer Schaden (bei Nebentäterschaft)

At common law where two or more tortfeasors are together the wrongful cause of plaintiffs injury, the plaintiff would have a cause of action against either for the entire amount of his or her damages. A possible reform which has not yet been broadly adopted would be to divide the damage award against each defendant in proportion to their fault.
See, Gaves v. Cabi, 96-T-5506, 96-T-5537 and 97-T-0026, Court of Appeals, Ohio 1997 Ohio App. Lexis 5570.


Damage, Emotional | Gefühlsschaden
See damages for pain and suffering

Damages, exemplary | Exemplarischer Schadensersatz |  dommages-intérêts exemplaires |  risarcimento danni

A synonym for punitive damages. Exemplary damages are those damages arising out of the defendant's willful acts where such acts are ere malicious, violent, oppressive, fraudulent, wanton or grossly reckless. The justification of examplary damages is primarily punishment of the individual and deterrence of other individuals but secondarily as a form of compensation. In some cases of outrageous conduct, e.g. fraud, sexual abuse, or other intentional torts, the exemplary damages can be much greater than the actual damages.
See, e.g.: Wilkes v. Wood (1763), 98 Eng. Rep. 489;
Molzof v. United States, 502 O.S. 301
BMW of North America v. Gore, 646 So.2d 619 (Ala 94) Reversed
1996 U.S. LEXIS 3390, *; 517 U.S. 559; 116 S. Ct. 1589; 134 L. Ed. 2d 809


Grimshaw v. Ford Motor Co., 119 Cal.App.3d 757; 1981 Cal.App. Lexis 1859; 174 Cal.Reptr. 348

Damages, General | Ersatz eines immateriallen Schadens | Courants danni generici

Those damages which ordinarily flow from the tortious conduct and thus need not be specifically pleaded as they are implicit in the plaintiffs complaint. Having proven the underlying act, the ordinary damages flowing therefrom are presumed, though such proof may be refuted at least in the case of libel. Though there is no necessary correspondance between general damages and primary injury and special damages and consequential damages that correspondance often occurs in fact. In fact prudence dictates that plaintiff’s plead all damages as special damages to avoid losing their substantive rights due to the procedural distinction between general and special damages.

See: Myers v. Stephens, 43 Cal.Rptr. 420, 433, 233 C.A.2d 104.

Damages, Hedonic

Damages intended to compensate plaintiffs for the lost pleasure resulting from the injury. As hedonic damages inflate compensation and compensate an abstraction they are not recognized in all jurisdictions.

Damages, Monetary | Vermögensschaden

Monetary or pecuniary damages are those damages to the fortune of the victim. As such damages are concrete and material they are more easily measured than abstract rights (e.g. future contingent streams of income such as from a patent) or subjective emotions (pain and suffering).

Damages, Measure of | base d'évaluation des dommages-intérêts

The method used to calculate the damages sustained by the injured party.

Damages, Mitigation of | Obligation de limiter les dommages

The victim of a tort-feasor, though a victim, nonethless has an affirmative duty to do their best to reduce the damages consequent to the tortious misconduct. That duty is known as the duty to mitigate damages. The victim must take advantage of any reasonable opportunity he may have had under the circumstances to reduce or minimize the loss or damage.

The culpability of the defendant is irrelevant to the plaintiff’s duty to mitigate the damages. Defendants may thus raise the failure of the plaintiff to mitigate the damages as an affirmative defense not to the finding of liability but to the determination of the extent of damages.

For example, plaintiff who due to injury loses her job must nonetheless seek a new one but will be compensated for any lost wages and probably also (depending on the facts of the case) for their reduced income if the new employment pays less than the old.

See, e.g.: Spier v. Barker, 323 N.E.2d 164 (1974);


Damages, Nominal | dommages-intérêts symboliques

A trivial sum awarded where only a breach of duty was shown with however no showing of damages or where the damages are minute. Such damages, generally of a small amount (e.g. one dollar) are a symbolic form of satisfaction and recognition of the abstract right of the plaintiff where no measurable loss arising from the injury is averred or proven.

Damages, Non-Economic

Damages for pain, suffering, loss of companionship, and loss of consortium (love of spouse). Unlike concrete material economic losses, such as lost wages, medical bills, and damage to property such damages are abstract. Non-economic damages may be limited by statute.

See, e.g.: Hitaffer v. Argonne Co., Inc., 183 F.2d 811 (D.C.Cir. 1950), cert. denied 340 U.S. 852, (1950);
Yates v. Foley, 247 So.2d 40 (Fla 1971); General Electric Co. v. Bush, 498 P.2d 366 (Nev. 1972);


Damages for pain and suffering | schmerzengeld

Injuries to the plaintiff’s sense of well being; The non material damages to a victim of a tort which are remedied with money under a theory of compensation

Pure motional damages, where allowed, are generally only allowed to immediate relatives. However in cases where the defendant is in close proximity to a violent accident and thus felt themselves in danger pure emotional damages will be permitted. Further emotional damages for pain and suffering in addition to and as a result of some substantive material damages will also be allowed.
See also: intentional infliction of emotional distress, negligent infliction of emotional distress.

Damage per se / actionable per se | Eine Rechtsgutsverletzung wird einem kompensationsfähigen Schaden gleichgesetzt

A damage per se is one wherein damages are presumed upon occurrence of the tort, e.g. in cases of libel where the libel concerns imputation of crime, a loathsome disease, the unchastity of a woman, or words affecting the plaintiffs trade, business or profession. However per se damages may be able to be refuted by the defendant who will then bear the burden of proof for his affirmative defense.

Damages, presumed

Damages which do not require proof as they are presumed as a matter of law to result naturally and necessarily from a tortious act.


Damages, punitive  | dommages-intérêts punitifs
See also: exemplary damages (syn.)

Punitive damages are those damages awarded in case of willful, wanton, or malicious conduct. They may even be available in cases of reckless negligence if the damages are particularly severe or in cases of fraudulent acts. Punitive damages serve to punish the defendant and deter others. The plaintiff must prove both the necessity and extent of punitive damages according to the ordinary standard of a  preponderance of the evidence. Conduct is malicious if it is accompanied by ill will, or spite, or if it is for the purpose of injuring another. Conduct is reckless if it reflects a complete indifference to the safety and rights of others.

See: Wetherbee v. United lns' Co. of America, 18 C.A.3d 266, 95 Cal.Rptr. 678, 680.


Damages, Special | Ersatz eines konkretes Vermögensschadens | dommages-intérêts spéciaux

Those damages which do not arise ordinarily out of the injury but which arise extraordinarily and thus must be specifically plead and proven. Such damages are nonetheless concrete and material as opposed to abstract. That is they are calculable in economic terms. Special damages must be plead and proven in cases of slander. E.g. a plaintiff’s has been burgled, and as a consequence must seek lodging elsewhere. This consequential damage, having to pay a hotelier, must be specially plead and proven.

Sometimes the special damage is said to constitute the substance of the action itself; for example, in an action wherein the plaintiff declares for slanderous words, which of themselves are not a sufficient ground or foundation for the suit, if any particular damage result to the plaintiff from the speaking of them, that damage is properly said to be the substance of the action.

Special damages can include medical bills, repair and replacement of property, lost wages and other concrete damages which are not abstract speculative or subjective.

See: Twin Coach Co. v. Chance Vought Aircraft Inc., 163 A.2d 278, 286.


Damages, Treble / Treble Costs | Strafschadensersatz

Treble damages is the measure for an award of punitive damages. The actual calculation of punitive damages is not fixed according to a formula and must in all cases be proven by the plaintiff, first as to existence, second as to extent. However those damages can be as high as three times the substantive damages plus the plaintiffs attorney’s fees and costs. Treble damages may also be governed by statute which may abrogate the common law rule.

E.g., if a jury awards twenty dollars damages and punitive damages would be forty dollars more. However the construction of treble damages is different from that of treble costs.

Damages, Treble costs

Treble costs are sometimes awarded by statutes. When an act awards treble costs, the party is allowed three times the usual costs, excepting the fees and costs of their attorney which are not trebled.
Damnum sine injuria

Literally condemnation without injury, often mis-translated as damages with no injury but in fact would be better translated as injury (a wrong) with no damages (a measure).

Refers to the legal situation in which plaintiff’s right is not respected by another but where the breach of plaintiff’s right does not cause a damage, or at least not a calculable or admissible damage. A finding of damnum sine injuria can be the basis for a finding of nominal damages (q.v.).


Deceit | Arglistige Täuschung | Betrug

Deceit is a tort of fradulent misrepresentations: it’s elements are:
1) A fraudulent statement
2) Made with intent to decieve
3) Which induces reliance on the part of the plaintiff
4) And results in injury to the plaintiff.
The tort will also lie where the statement was made with reckless disregard as to its truth or falsehood.

Deceit is similar to the tort of passing off; however in the tort of deceit the injured plaintiff is a consumer, and in the tort of passing off the injured plaintiff is a competitor.

In some jurisdiction deceit or fraud is a statutory tort and includes an action against false advertising.

See: Karlin v. IVF America, 1999 N.Y. LEXIS 815, *; 93 N.Y.2d 282; 712 N.E.2d 662; 690 N.Y.S.2d 495 (Suit for false advertising permitted under fraud statute in case of medical misrepresentation).

Defamation | Verleumdung / Üble Nachrede / Beleidigung

Communication to third parties of false statements about a person such that the statements injure the person’s reputation or dissuade others from associating with them.

There are two forms of defamation, slander, which is oral and libel which is written. In cases of slander,  damages must be proven, but in cases of libel damages are not presumed and must be proven.

Truth is a defence to an accusation of defamation.

This tort corresponds, roughly, to the German torts of Verleumdung, üble Nachrede, and Beleidigung.

Beleidigung is a more extensive injury than defamation and includes words which are insulting or emotionally injurious.

At common law in England a court could order the defaming defendant to offer an apology.

See, e.g.
McGowen v. Prentice, La.App., 341 So.2d 55, 57.
Wolfson v. Kirk, Fla.App., 273 So.2d 774, 776.

Defamation and Public Figures

Public figures, including officeholders and candidates, have to show that the defamation was made with malicious intent and was not just fair comment.

Defamation and the Constitution

In the U.S. the First Amendment freedoms of speech and press must also be considred. New York Times v. Sullivan, 376 U.S. 254, 264 (1964); Masson, 501 U.S. at 510. The U.S. constitution protects  statements of opinion on matters of public concern that do not contain or imply a provable factual assertion. Milkovich, 497 U.S. at 20.

Defamation and Opinion

To determine whether a statement implies a factual assertion, courts examine the totality of the circumstances in which it was made. They look at the context and contents which the work present – the subject of the work and the setting in which the subject is treated. The court will look to the language for  hyperbole or figurative language. They look to see whether the statement can be proven or disproven and whether it merely expresses an opinion.

'[T]he First Amendment requires that the courts allow latitude for interpretation.' Partington, 56 F.3d at 1154 (quoting Moldea v. New York Times Co., 22 F.3d 310, 315 (D.C.Cir.), cert. denied, 115 S.Ct. 202 (1994)).

Defamation, Fact or Opinion

A defense to defamation is that the supposedly defamatory statement was in fact merely an expression of a personal subjective opinion. To determine whether a statement is merely an opinion, the court puts itself in the position of a reasonable person percieving the statement in the totality of circumstances. "what constitutes a statement of fact in one context may be treated as a statement of opinion in another, in light of the nature and content of the communication taken as a whole." (Gregory v. McDonnell Douglas Corp. (1976) 17 Cal.3d 596, 601.)  Where the statement is 'cautiously phrased in terms of apparency,' it is less likely to be seen as an assertion and more likely to be seen as an opinion. Other facts and circumstances of the publication must also be considered. The statement must also be seen as a whole: 'It may not be divided into segments and each portion treated as a separate unit.' It must be read as a whole in order to understand its signification. import and the effect which it was calculated to have on the reader, and construed in the light of the whole scope and apparent object of the writer, considering not only the actual language used, but the sense and meaning which may have been fairly presumed to have been conveyed to those who read it.


Default / Defect |  Fehlverhalten / Fehler (?)

A flaw in a product which causes it to malfunction which malfunction may lead to a tort. See: products liability.

A defect is ordinarily a condition precedent to the finding of a tort under a theory of strict liability. However there are exceptions to the rule: in cases of negligent supply by a merchant of an inherently dangerous product to minor the manufacturor can also be held liable.

Defective Product

Where a product is defective the products manufacturer can be implicated in tort on a theory of strict liability.

A product is in a defective condition, i.e. is unreasonably dangerous to the user, when it has a propensity or tendency for causing physical harm beyond that which would be contemplated by the ordinary user.

A defective condition is a legal cause of injury if it directly produces the injury. A defective condition may be a legal cause of damage even though it operates in combination with the act of another, or some other natural cause.

Thus, in cases involving defective or unreasonably dangerous products the manufacturer may be liable even though it exercised all reasonable care in the design, manufacture and sale of the product in question.

Manufacturers are not on always liable for accidents resulting from misuse of their products. The manufacturer is not an insurer. The mere possibility that injury result from the use of a prodcut is insufficient to impute liability to a manufacturer. (Moomey v. Massey Ferguson, Inc., C.A.N.M., 429 F.2d 1184. 1184.) here is no duty upon the manufacturer to produce a product that is 'accident-proof.' However the manufacturer is required to make a product free of defective and unreasonably dangerous conditions.

See: Manieri v. Volkswagenwerk, A.G., 151 N.J.Super. 422, 376 A.2d 1317, 1322.


Defence

French défense: Latin defensa: defendere, to strike down or away, ward off, repel. Mid. Eng. defence.

That which is proposed by the defendant to defeat their opponents claim by denial of the injury, by justification of the cause of injury, or by reducing or eliminating the damages therefrom.

Defence | Einwendung / Rechtfertigung

Evidence offered by the accused to refute a charge.

Defence, Affirmative

A defence based not on the falsehood of the accusation but rather upon some excuse or justification (q.v.) which may limit the damages in whole or in part. Common affirmative defences include assumption of risk, incapacity, self defence and the statute of limitations among others. The defendant bears the burden of proof as to affirmative defences.

Defence, Dilatory.

A defence made not on the merits but to obstruct and harrass the prosecution of the claim and which does not touch upon the substantive merits of the claim.

Defence, Equitable

A defence founded not on a theory of law but on a theory equity or on both a theory of law and of equity. See: Equity

Defence, Full.

A defence in the common law which contests both the finding of damages, that the defendant was negligent, and the extent thereof, that if the defendant were negligent, that his damages would be not what the plaintiff claims but some other lower value.

Defence, General

A general denial of the material allegations of a claim.

Defence, Legal

A defence made on a theory of law as opposed to equity.

Defence, Peremptory

A defence which asserts that the plaintiff does not have or never had a cause of action.

Defendant | Beklagte

The party against whom recovery is sought and thus s/he who defends. The party complained against. In criminal cases, the person accused of the crime. In civil matters, the person or organization that is being sued.

In equity actions the defendant is sometimes called the respondent. In practice this term has disapperead with the merger of law and equity. The term respondent is also, and much more commonly, used to designate the person responding to an appeal.

Delict/Tort | Delikt (~Haftung)

Latin: Torquere, To twist. French: Tort – Wrong

A private, i.e. civil and not criminal, wrong or injury other than an injury resulting out of a contractual obligation, for which the law will grant a remedy. See: prima facie tort. See: tort, prima facie tort

Deterrence | Abschreckung / Prävention

One of the theories upon which liability in tort is justified. The idea being simply that the liability in tort will deter and prevent negligent errors.

Discernment | Einsichtsfähigkeit

Being of such an age that the law will impose ordinary legal responsibility upon the person. Having attained the age of majority and suffering from no incapacitating infirmity. See: children, capacity.

Disclaimer / Waiver |

Ordinarily a tort will imply a remedy – ‘for every right there is a remedy’. However a plaintiff may have waived their right, either expressly or implicitly. Where that waiver was knowing, (i.e. appreciating the risks and dangers) intelligent and voluntary (absence of coercion) that plaintiff will not be able to recover for they have accepted the risk and thus the damage.

To avoid tort liability manufacturors and merchants will often include disclaimer clauses in their sales contracts. However these clauses may – or may not – be declared void as against public policy.

Discrimination | Diskriminierung

The effect of a statute which arbitrarily affords certain privileges to one class of persons yet denying them to another class of persons where no reasonable distinction can be made between the two classes. Unfair treatment or denial of rights or privileges to persons because of their race, age, nationality or religious heritage or convictions.

Baker v. California Land Title Co., O.C.Cal., 349 F.Supp. 235, 238, 239.

Division of the burden of proof | Beweislastverteilung

In some cases the burden of proof of certain elements of the claim will be on one party, while other elements of the same claim will be on the other. For example, in cases of libel, the plaintiff must prove the defamatory assertion after which damages are presumed. The defendant however can move to prove the truth of the matter asserted - but will bear the burden of proving the truth of the libelous statement.

Due Care / Standard of Care

The care that an ordinarily reasonable and prudent person would use under the same or similar circumstances. Proving the failure to exercise due care toward a person who one has a legal duty resulting in injury to that person establishes a prima facie tort. Due care is one of the standards of care (q.v.) in tort.

Physicians are held to a higher standard of care, not that of a reasonably prudent person but of a reasonably prudent physician.

Gillette v. Tucker, 67 Ohio St. 106, 65 N.E.
865.
Bruni v. Tatsumi, 46 Ohio St.2d 127, 129, 346 N E.2d 673, 676
doctors


Duress | Zwang / Nötigung

Overwhelming force which compels a defendant to act or fail to act to the injury of another. Though that act or ommission would normally constitute a tort, here it may not if the defendant can prove that their conduct was justified because of duress.

Hyde v. Lewis, 25 lll.ApP.3d 495, 323 N.E.2d 533, 537.
Williams v. Rentz Banking Co., 112 Ga.App. 384, 145 S.E.2d 256, 258.

Duty

Legal or moral obligation. When recognised as a legal obligation the precondition for all torts.

Rasmussen v. Prudential lns. Co., 277 Minn. 266, 152 N,W.2d 359, 362.


Duty of Care | Verkehrspflicht („Sorgfaltspflicht“)

The duty of the defendant to act as a reasonably prudent person. This duty may be elevated to one of utmost care in certain situations such as bailors

Duty to act | Pflicht zu Handeln

Ordinarily the common law, unlike continental civil law, does not impose an affirmative duty to act. However the exceptions to the general rule of “no duty” are numerous: For example family members, working colleagues and contracting parties will all have a legal duty in tort to act non-negligently toward each other.

Duty to ensure safe premises | Verkehrssicherungspflicht

An owner of real property is under a duty to warn invitees of hidden dangers on his or her property.

Duty, Organisational | Organisationspflicht

The liability of a corporation is the same as that of a natural person. However the corporation’s shareholders – unlike its board of director’s and employees – will only be liable for the torts of the corporation to the extent of their investment. Like any employer a corporation can be held liable for torts to it’s employees which occur at the workplace according to the vicarious liability imposed by the principle of respondeat superior (q.v.).


Due Care / Standard of care

The ordinary care which one is obliged to use towards others to protect against risk of injury. The care attention and watchfulness which a reasonable person would exercise under the circumstances in which he or she finds herself. Failure to meet this standard constitutes one element of a prima facie tort, namely breach of legal duty. The standard of care may be higher than ordinary due care so the terms are not exactly synonymous. Due care is the ordinary standard of care.

The general rule is that the standard of care is that of a reasonably prudent person. Exceptionally higher or lower standards of care can be imposed.
Murray v. De Luxe Motor Stages of lllinois, Mo.App., 133 S.W.2d 1074, 1078.


Duty

Anglo-French deuté indebtedness, obligation, from deu owing, due.

An obligation, whether imposed by law or assumed by contract to conduct oneself according to a certain standard such as  the standard of ordinary care. For example landowners have a duty to maintain safe premises, drivers have a duty to drive responsably. Proving the existence of a duty is one element of a prima facie tort. (proving its breach, causation in fact, and legal causation are the others).

No Duty Doctrine

The general rule at common law is that persons are generally not subject to legal duty. This is not the case in civil law jurisdictions. There are many exceptions to the general rule in the common law.Family relations and co-workers owe a duty to each other. Duty can be assumed by one’s actions. Thus though one has no duty to aid a stranger once aid is offered to them that aid must be non-negligent.

Duty, breach

Literally, to break.

The term used to designate the failure to comply with one’s legal duty, for example in tort the legal duty to act non-negligently. Breach of an existing legal duty is one element of a prima facie tort (q.v.).

-E-

Efficient Cause

A synonym for proximate cause. Hillis v. Home Owners' Loan Corporation, 348 Mo. 601

That cause which vhich Produces results which would not have come to pass except for its interposition, and tor which, therefore, the person who set in motion the owgina chain of causes is not responsible.
Southland Greyhound Lines v. Cotten, Tex.Civ.App., 55 S.W.2d 1066, 1069

See also: intervening / superseding cause.

Emergency | Notfall ?

At common law – unlike the continental civil law - there is no duty to rescue persons in an emergency. The only justification for that rationale is the fact that some persons may not in an emergency have the calm required to perform a rescue.

Statutes in some common law jurisdictions impose an affirmative duty to rescue or perform medical treatment on physicians and other persons employed as professional rescuers.

State v. Perry, 29 Ohio App.2d 33, 278 N.E.2d 50, 53.

Eminent domain

Eminent domain is the right of the soveriegn over all property within its territorium. It is the right of the soveriegn to confiscate without compensation. Constitutional limitations on this sovereign power may exist and do exist in the United States where property when taken  by the government must be fairly compensated and may only be taken for public use.

Authority of Cherokee Nation of Oklahoma v. Langley, 555 P.2d 1025, 1028.

Emotional Distress | Gefühlsschaden

Damages for emotional distress were greeted with skepticism at common law, all the more so where no claim of material injury was averred. Still one could consider assault an example where even the common law would permit recovery for intentional infliction of emotional distress. And later the common law did recognize exactly this tort: an intentional, i.e. willfull, action undertaken to cause emotional distress can be a cause of action in tort. More dubious however is the claim of a tort for negligent infliction of emotional distress. Such claims have been recognized by some jurisdictions but only very recently and not without skepticism and criticism. See: Negligent infliction of emotional distress, intentional infliction of emotional distress.

Employee vs. Independent Contractor

To determine whether a person is an employee or a contractor a number of factors must be considered in their totality: none of the factors are dispositive alone but taken together with the others will lead to the determination of the status of the person. A designation of the relationship by the parties without the underlying relation is not controlling.

One of the most important considerations is the degree of control exercised by the company over the work of the workers.  Another factor to be considered is the duration of the relationship: independent contractors are seasonal whereas employees are generally employed indefinitely at will. An independent contract will tend to be paid not by the hour but by the job as a flat rate or on commission.

Persons injured by the negligence of an independent contractor will not be able to recover against the person who bid the services of that contractor unless there was negligence as to the hiring of the contractor. In contrast victims of ordinary employees may have a recovery either against the employer or the employee who will be jointly and severally liable under a theory of respondeat superior. See: respondeat superior, vicarious liability, organizational liability.

Riverbend Country Club v. Patterson, Tex. Civ. App., 399 SW.2d 382, 383 (1965)

Hammes v. Suk, 291 Minn. 233, 190 N.W.2d 478, 480, 481.
Sparks v. L. D. Folsom Co., 217 Cal.App.2d 279, 31 Cal.Rptr. 640,

Housewright v. Pacific Far East Line, Inc. (1964) 229 Cal. App. 2d 259, 40
Cal.Rptr. 208, 212;

Dowling v Mutual Life Ins. Co. of New York, 168 So.2d 107, 112 (La.App.1964).

Enterprise liability

Liability of a business either for the on-the-job injuries of its employees or for the collective liability of an entire industrial sector where it is clear that that sector had produced a defective product but where the specific manufacturer cannot be identified. See mass tort, market share liability (q.v.).

Employment

The hiring of a person for compensation. Whether an act occurred “within the scope of employment” will determine the liability of the employer for the torts of the employee toward third parties.

Hinton v. Columbia River Packers' Ass'n, C.C.A.Or., 117 F.2d 310. 117

Employment-at-will

Employment for so long or so brief as the employer chooses. This is the usual form of employment in the United States. At will employees may be fired at any time for any reason or no reason at all.

Epedemiological proof

The study of medicine and probabilities in order to determine the causation of illness and the application of these two sciences to the proof of facts in a court of law. Epedemiological proofs are most often used in cases of toxic torts (q.v.) and mass torts (q.v.).

Equity

Latin aequitat- aequitas fairness, justice, from aequus equal, fair

Equity can refer to an interest in a property not equivalent to the value of the property. This meaning is not our concern here but is mentioned in order to prevent further confusion in an already dense and obscure area of the common law.

Historically speaking the equity courts assured the function of justice as fairness and corrected the mechanical legalistic application of rules of the law courts.

The courts of equity arose in England from a need to provide relief for claims that did not conform to the writ system existing in the courts of law. Originally, the courts of equity exercised great discretion in fashioning remedies. Over time, they established precedents, rules, and doctrines of their own that were distinct from those used in the courts of law.

The courts of equity were instituted by the King, then through his Chancellor to correct the harsh legalism of the law courts. As a special and discretionary correction instance the equity courts imposed moral restrictions upon the plaintiffs and also limited the remedies they would award. While some remedies would only be available at law, others would only be available at equity (namely injunction and specific performance). Thus a procedural legalism developed regqrding legal or equitable jurisdiction. This  legalism however recreated the very problem the equity courts were intended originally to correct! This situation has been remedied somewhat by the fusion of law and equity courts into one general court of first instance both in the U.S. and the U.K. – though the procedural distinctions continue to survive.

Gilles v. Department of Human Resources Development, 11 Cal.3d 313, 521 P.2d 110.

Evidence

Those objects or statements which tend to prove or disprove the elements of a claim. The things presented in court for the purpose of proof of matters there asserted.

Taylor v. Howard, lll R.I. 527, 304 A.2d 891, 893.

Testimony, documents, photographs, maps and video tapes are all examples of evidence.


Evidence, Clear and Convincing | hohe Wahrscheinlichkeit
See supra clear and convincing evidence

Beyond reasonable doubt | mit an sicherheit grenzende Wahrscheinlichkeit

A standard of proof in the common law.

State v. Dubina, 318 A.2d 95, 97.

Preponderance of | Überwiegende Wahrscheinlichkeit

See: Proof by a preponderance of the evidence infra

Presentation of evidence | Beweisaufnahme

See Presentation of evidence infra

Presentation of evidence | Beweisaufnahme

Evaluation of evidence | Beweiswürdigung

The determination of the trier of fact as to whether the movant has carried their burden of proof, i.e. whether the means of proof meet or exceed the standard of proof.

Excuse.

A reason alleged for the doing or not doing a thing. An excuse can reduce damages partially or entirely. Excuses are either because the tort feasor had no choice or because they had no intention to commit the act or its consequences. Minor children, lunatics, and the infirm may be excused due to their lack of discernment. Self defence and destruction of a good to prevent a greater evil is an excuse because the defendant had no choice.

Expectation damages | Erfüllungsinteresse

Those damages which a plaintiff sustains not based on the injury but because of the loss of some future, possibly speculative, stream of income. Courts will be hostile to expectation damages because of their speculative character.

Extent of Liability | Haftungsausfüllung

The principle that, once a foundation of liability has been determined, that that liability must be discharged; also the methods by which that liability is discharged

-F-

Fault | (zivilrechtliches) Verschulden

The entire system of negligent torts, with the exception of strict liability, is predicated on the notion of some fault, i.e. the absence of the care of a reasonably prudent person. Fault can be defined as negligence or the failure to perform a legal duty.

l Continental Ins. Co. v. Sabine Towing Co., C.C.A.Tex., 117 F.2d 694, 697.
Kersey Mfg. Co. v. Rozic, 207 Pa.Super, 182, 215 A.2d 323, 325.


Fault, Comparative | Mitverschulden

See negligence, comparative (syn.)

Fualt, Contributory | Mitverschulden

See negligence contributory

Federal Law | Bundesrecht

The United States, like many other former British colonies, is a federal system predicated upon the dual sovereignty of the states/provinces on the one hand, and on the national soveriegn at another. Germany is also a federal system, however the German federal government has broader powers than that of the United States

Fellow servant rule | Nicht Haftung des Arbeitgebers, wenn ein Arbeiter schuldhaft einen anderen Verletzt

At common law an employer would not be held liable for torts injuring an employee which occurred on the premises of the work-place but which were the fault of one of his servants. Prior to the industrial revolution, where there were both fewer and less serious accidents and where there was less mobility the fellow servant rule made sense. But with the reality of grave injury and highly mobile employees the necessity of providing at least de facto insurance for workers led to the abandonment of this rule and a determination of a general liability for an employer for all torts occurring at the work-place in the scope of the employees duties. This general liability is known as the principle of “respondeat superior”.

Walsh v. Eubanks, 183 Ark. 34, 34 S.W.2d 762, 764.
Southern Ry. Co, v. Taylor, 57 App.D.C. 21, 16 F.2d 517, 519.

Foreseebility | Vorhersehbarkeit

The modern determination of a negligent tort is dependant upon the foreseeability of the tort arising from the defendants conduct. That is, whether a reasonably prudent person would be able to foresee that their conduct would result in damage to the plaintiff.

Emery v. Thompson, 347 Mo. 494, 148 S.W.2d 479, 480.
Clark v. Wagoner, Tex., 452 S.W.2d 437, 439.
Wyatt v. Motsenbocker, Tex.Civ.App., 360 S.W.2d 543, 546.

Foundation of liability / basis of liability | Haftungsgrund

The principle that a tort must first be grounded in some factual instance. This principle of German law has no exact conceptual equivalent in the theory of common law torts though of course in practice analogues and paralells can be found.

-G-

General Contract Terms | Allgemeine Geschäftsbedingungen

Those clauses of a contract which are not negotiated. These clauses, often in fine print, may or may not be read and may or may not be comprehended or comprehensible. Thus courts may, at their discretion, set them aside if manifest injustice results under a theory of unconscionability. German law appears however to take these clauses much more seriously, both to the benefit of the consumer and to society at large through greater legal certainty. [?]

Governmental immunity

The principle of the common law is that “the king can do no wrong” – that is that there be no remedy against the sovereign because of sovereign immunity unless the sovereign waive that immunity. This principle continues to exist in America however the government consents to be sued according to the federal tort claims act.

Local governments can be sued directly under 42 U.S.C.A. § 1983

Monell v. Department of Social Services of N. Y., 429 U.S. 1071, 97 S.Ct. 807, 50 L.Ed.2d 789.

See: Sovereign Immunity (syn)
Principe Compania Naviera, S.A. v. Board of Com'rs of Port of New Orleans, D.C.La., 333 F.Supp. 353, 355.


Governmental Liability | Staatshaftung

The liability of the government in tort was limited at common law by government immunit (also known as soveriegn immunity) (q.v.). This has changed with the introduction of tort-claim statutes, both by federal and state governments.

-H-

Honour; Reputation : Ehre
The moral right of a person to be held in good esteem by the community until their comportment prooves that they are in fact otherwise.

Hospital Liability | Krankenhausträgerhaftung

Hospitals may be immune from torts either as charities, when run by the private sector, under the principle of charitable immunity or, when run by the state, under a theory of governmental immunity. This immunity however would not exculpate the negligence of the hospital’s employees.

-I-

Immunity:

See governmental Immunity

Independent Contractor

See: employee vs. independent contractor

Informed Consent

See: consent, informed

Insurance | Versicherung

Industrialisation led to serious work-place accidents. Consequently to avoid the worst injustices governments enacted mandatory insurance systems to cover workers against such accidents. The tort system also plays an insurance role, but is generally not as efficient due to the costs of attorneys as an insurance system.

First party | Schadensversicherung

Insurance by a person of their person or property. Such insurance could arguably be considered as deductible from whatever damages award that the insured receives in the event of being victim of a tort-feasor. In cases of obligatory insurance a good argument can be made that reducing the damages award by the insurance is just, particularly in cases of no-fault liability such as auto accidents. However in cases of voluntary assurance the collateral source rule would be perverse: it would undermine the deterrence function of tort law by permitting plaintiffs to escape unsanctioned or under-sanctioned and punish prudent plaintiffs who seek insurance.

Third party | Haftpflichtversicherung

(Obligatory) Insurance of persons against accidents that they cause. Such insurance where mandatory is clearly legal. What of cases where the insurance is not mandatory? There the risk is percieved that permitting insurance coverage may lead to irresponability. However that rationale is not strong: the costs of litigation, both in terms of money and time, as well as the threat of punitive damages and higher premiums indicate that the deterrence function of tort law is probably not undermined by permitting insurance to cover tortious losses.

Social | Sozialversicherung
As explained above, social insurance is a mandatory insurance coverage which is intended to spread losses for injury through society. Social insurance serves the goal not of deterrence or punishment or even prevention but rather the goal of compensation.

Immunity

Exemption from legal duties. In so far as torts are concerned, immunities may be classified according to their extent, being absolute or qualified, or their object, being governments or persons.

Governmental Immunity

A principle precluding the institution of a suit against the government without its consent.

Governmental immunity exempts the government from liability for its torts. It is referred to as either governmental immunity or as soveriegn immunity. The terms are synonymous.

The principle of the common law is that “the king can do no wrong” – that is that there be no remedy against the sovereign because of sovereign immunity unless the sovereign waive that immunity.

This principle continues to exist in America however the government consents to be sued according to the federal tort claims act. According to Holmes, the "sovereign is exempt from suit [on the] practical ground that there canbe no legal right against the authority that makes the law on which the right depends." 205 U.S. 349, 353.

"[S]tatutes waiving the sovereign immunity of the United States must be`construed strictly in favor of the sovereign." McMahon v.United States, 342 U.S. 25, 27 (1951).

The government can waive its immunity.

Local municipalities often enjoy “regulatory immunity” for those tasks which arise out of any of the municipality's regulatory  decisions involving cable television. See, e.g.
Caprotti v. Town of Woodstock,   1999 N.Y. LEXIS 3729, *; 94 N.Y.2d 73; 721 N.E.2d 957; 699 N.Y.S.2d 707

Types of  Personal Immunity

Personal immunities protect government official from personal liabilities for torts committed in the scope of their office. Personal immunities are either qualified or absolute. For a good summary see
Lauer v. City of New York, 2000 N.Y. LEXIS 907, *; 95 N.Y.2d 95; 733 N.E.2d 184; 711 N.Y.S.2d 112


Qualified Immunity

Qualified immunity protects government officials from personal liability for the torts they commit in the service of the government. It protects them “from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known."
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).

"Therefore, regardless of whether the constitutional violation occurred, the officer should prevail if the right asserted by theplaintiff was not `clearly established' or the officer could have reasonably believed that his particular conduct was lawful." Romero v. KitsapCounty, 931 F.2d 624, 627 (9th Cir. 1991) (emphasis added). Furthermore, "[t]he entitlement is an immunity from suit rather than a mere defense to liability; .. . it is effectively lost if a case is erroneously permitted to go to trial." Mitchell v. Forsyth, 472 U.S. 511, 526 (1985).

The qualified immunity test requires a two-part analysis: "(1) Was the law governing the official's conduct clearly established? (2) Underthat law, could a reasonable officer have believed the conduct was lawful?" Act-Up!, 988 F.2d at 871; see also Tribble v. Gardner, 860 F.2d321, 324 (9th Cir. 1988), cert. denied, 490 U.S. 1075 (1989).

Even where there has been a constitutional violation immunity will protect the government officer if he or she "could have reasonably believed that hisparticular conduct was lawful." Romero, 931 F.2d at 627.

"[A] district court's denial of a claim of qualified immunity, to the extent that it turns on an issue of law, is an appealable 'final decision'within the meaning of 28 U.S.C. section 1291 notwithstanding the absence of a final judgment." Mitchell v. Forsyth, 472 U.S. 511, 530(1985).

Qualified immunity only applies to the acts of the government official undertaken in the scope of their office.

Absolute Immunity

Absolute immunity is unconditional immunity from all personal civil liability, e.g. diplomatic immunity.

Charitable Immunity

Immunity from civil liability and particularly as regards negligent torts that is granted to a charitable or nonprofit organization such as a hospital.

Corporate Immunity

Immunity from liability in tort granted to an officer of a corporation who acted in good faith within the scope of their duties.

Discretionary Immunity

Qualified immunity from civil liability for tortious acts or omissions that arise from a government employee's discretionary acts performed as part of their duties

Executive Immunity

Immunity granted to officers of the executive branch of government from personal liability for tortious acts or omissions done pursuant to their duties. The US president's executive immunity is absolute, the immunity of other federal executive officials is qualified.

Judicial Immunity

Absolute immunity from liability that is granted to judges and court officers such as grand juries and prosecutors and for tortious acts or omissions done within the scope of their jurisdiction orauthority.

Legislative Immunity

Absolute immunity from liability that is granted to legislators for tortious acts or omissions done in the course of legislative activities.

Official Immunity

Discretionary immunity from personal liability that is granted to public officers for tortious acts and omissions

Ministerial / Discretionary distinction

The law in this field is intricate and frankly byzantine.

Where municipalities have waived their common-law tort immunity for the negligence of their employees, a distinction is drawn, between "discretionary" and "ministerial" governmental acts. A public employee's discretionary acts--meaning conduct involving the exercise of reasoned judgment--may not  result in the municipality's liability even when the conduct is negligent. By contrast,  ministerial acts--meaning conduct requiring adherence to a governing rule, with a compulsory  result--may subject the municipal employer to liability for negligence (see, Tango v Tulevech, 61 NY2d 34, 40-41). No one disputes that the Medical Examiner's misconduct here in  failing to correct the record and deliver it to the authorities was ministerial.
Lauer v. City of New York, 2000 N.Y. LEXIS 907, *; 95 N.Y.2d 95; 733 N.E.2d 184; 711 N.Y.S.2d 112

Imputation | Zurechnung

The determination of a legal duty or right to a person. The imputation may occur through implication or through legal fiction, i.e. a constructive duty or right.

Imputed Negligence

Negligence where the fault of one person is transferred to another. For example, the negligence of a child may be imputed to a parent or that of a worker to his or her employer.

Schmidt v. Martin 212 Kan. 373, 510 P.2d 1244, 1246.

See also: respondeat superior, master and servant, children.

Indemnity | Entschädigung

Compensation given (often from an insurance fund) to make whole the injury already sustained. May refer either to compensation via private insurance, social insurance or indemnisation of the victim of a tort by the tortfeasor through whatever resources the tortfeasor has.

Independent Contractor | selbständiger Vertragspartner

A person or business who serves another but on their own account, thus generally being paid either a flat rate or commission. The independent contractor is not subject to the control of she who hires them and thus the person who engages the contractor is not liable for the acts or ommissions of the contractor.

informed consent

A rule of full disclosure of all relevant facts which is necessary prior to the validity of a waiver of rights. Informed consent is most often a statutory obligation and effects most usually the field of medicine. Thus the physician must inform the patient of the risks and advantages of the procedure or medicine as well as the possible alternatives so that the patient can make a fully informed choice. Except in emergency, physicians must obtain the informed consent of the patient prior to treatment.

Injunction | Unterlassungsanordnung

An injunction at common law is an equitable remedy which can bar, either temporarily or permanently, and either prospectively or retrospectively any conduct of a defendant which constitutes a nuisance. Breach of such injunction will give rise to liquidated damages.

Gainsburg v. Dodge, 193 Ark. 473, 101 S.W.2d 178, 180.

Injury | Verletzung (eines rechtlich geschützten Interesses)

Injury implies damages and although the two terms are not synonyms they are very nearly so. Injury is the ordinary consequence of violation of one’s rights though injury does not always lead to damages which is why though the two terms are nearly the same they are not exactly so. Wherever there are damages there was an injury but ther is not always damages where there is injury. This principle of damnum sine injuria(q.v.) may be difficult for the lay person. However injury can encompassing abstract rights with no monetary value. Thus in cases of damnum sine injuria the injury is either de minimis, i.e. a trifling and too small to be remedied practically at the law or incommensurate. In such cases the plaintiff will have a satisfaction remedy of nominal damages - which are also called symbolic damages.

Personal | Verletzung körperlicher Integrität (Körperschaden)

Many torts, though not all, involve injuries to the body of a person. Such injuries are known as personal injuries.

Intent | Vorsatz

The autonomous individual – despite the fact of mutual dependance of people on others - is the centerpiece of the liberal notion of humanity. Thus the legal concept of intent, i.e. volition is central to an understanding of law in the liberal regimes. Intent is that state of
minde which is determined to do a certain thing.

Reinhard v. Lawrence Warehouse Co., 41 Cal. App.2d 741, 107 P.2d 501, 504.

State v. Gantt, 26 N.C. App. 554, 217 S.E.2d 3, 5.

Intentional infliction of emotional distress

The common law would not have recognized a claim for IIED as such, though such a claim could have been made using the general claim of action on the case or trespass on the case (q.v.) which are synonymous terms for the same action. Alternatively an IIED claim could have been – and as case, could be – made on a theory of assault if the victim were placed in fear of imminent bodily harm. This claim – where recognized – requires an intent on the part of the tort feasor, and an intent to harm the person. Thus there is less concern with fraudulent or exageratted claims that inheres in claims of negligent infliction of emotional distress (q.v.).

Even where this claim is recognized it is limited. E.g.,
“In our view, allowing   emotional distress claims against a municipality for an official's negligent failure to transmit correct information to law enforcement authorities conducting criminal investigations in this case will have far-reaching effects in future cases.”
Lauer, Respondent, v. City of New York
95 N.Y.2d 95; 733 N.E.2d 184; 711 N.Y.S.2d 112; 2000 N.Y. LEXIS 907

Intentional Interference With Prospective Economic Advantage

This tort protects the relationship of trust and confidence between two persons as regards a third person. To prove a tort of intentional interference with prospective economic advantage the plaintiff must show:
1) An economic relationship between themselves and another person
2) A potential future benefit arising out of the relation
3) That defendant knew of the relationship
4) Action or intent to commit acts designed to disrupt the relationship
5) Damages caused by the defendant’s acts.
Buckaloo v. Johnson (1975) 14 Cal.3d 815, 827.

Essentially this tort remedies situation where a contract would have been formed but for the tortious interference of the defendant.


See Besicorp Ltd. v Alan R. Kahn, 2002 N.Y. App. Div. LEXIS 77, * ; 736 N.Y.S.2d 708; 2002 N.Y. App. Div. LEXIS 77


Intentional Interference with Contract

The tort of intentional interference with contract grew out of the tort of 'inducing breach of contract.'' (Seaman's Direct Buying Service Inc. v.Standard Oil Co. (1984) 36 Cal.3d 752, 765.) and is in fact one type thereof.

Essentially this tort remedies situation where a contract has been formed but is repudiated because of the tortious interference of the defendant.
See, e.g. Builders Corporation ofAmerica v. U.S. (N.D.Cal.'57 148 F.Supp. 482, 484, fn. 1, revd. on other grounds (9th Cir.'58) 259 F.2d 766, see also Pacific Gas & ElectricCo. v. Bear Stearns & Co.(1990) 50 Cal.3d 1118, 1126.)

'The actionable wrong lies in the inducement to break thecontract or to sever the relationship, not in the kind of contract or relationship so disrupted, whether it is written or oral, enforceable or notenforceable.' ' Pacific Gas & Electric Co. v. Bear Stearns & Co., supra, 50 Cal.3d at 1127.

The act of inducing breach of contract must be intentional. Thus an act which unintentionally leads to the breach of contract would not be grounds for a cause of action.

Intentional torts | Vorsätzliche Delikte

For every intentional tort there is a corresponding crime. Thus the tort of assault / the crime of assault, the tort of battery / the crime of battery etc. The intentional torts are those torts committed not through negligence or under a theory of strict liability but deliberately.

Intervening cause / Intervening Efficient Cause

Where a necessary cause to a tort occurs and where a superseeding sufficient cause intervenes that intervening cause will clearly be a tort. The question then is what of the underlying necessary cause? Will it also be a tort? If the necessary cause was not however sufficient then it will not be a legal cause and will not give rise to a cause of action. If on the other hand the necessary cause was in fact sufficient but did not occur due to the intervening cause liability for the earlier necessary cause will also lie.

For example imagine a person has been poisoned: because of the poison they will die. However before they die a second tort feasor shoots them to death. Clearly the second party is liable. The first party is also liable – strictly speaking the second cause is not an intervening cause.

Imagine the opposite case: defendant is drunk, and drives with a passanger. At a traffic light, the passenger gets out of the stopped car, and crosses the street against the signal – and is struck by another driver. Clearly the drunken driver is negligent and is also factually a cause, i.e. a necessary cause. However his action is not sufficient: once the passenger got out of the car and crossed the street the second car acts as an intervening cause.

Phillabaum v. Lake Erie & W. R. Co., 315 Ill. 131, 145 N.E. 806, 808.
Coyle v. Stopak, 86 N.W.2d 758, 768;

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Joint and  Several Liability | Mitverschuldung / Mitgefährdung / Gesamtschuldnerische Haftung

Where two plaintiffs contribute to the defendants injury and where either plaintiffs conduct would have led to the injury they are both liable as as joint-tortfeasors. The plaintiff can recover against either of them for the entire cost of their injury, though the joint tort-feasors may have causes of action inter se.

Joint tortfeasors:

See concurrent tortfeasor

Justification | Rechtsertigungsgrund

The act by which a party accused shows and maintains a good and legal reason in court, why he did the thing he is called upon to answer. Justifiable actions include self defence, or even defence of one’s house or property. Libel and slander can be justified by proving the truth of the assertion or because the defendant had the write to publish, for example before a government inquiry.

Justification must be specially pleaded. When proven however it is a completely bars the action.

Young Women's Christian Ass'n of Princeton, N.J. v. Kugler, D.C.N.J., 342 F.Supp. 1048, 1062.

-L-

Law

See : action at law

Legal Cause / Proximate Cause | Zurechnungsgrund

Causation in tort is divided between factual cause, i.e. those necessary causes but for which the tort would not have occurred, and proximate or legal cause, which concerns those causes which were not only necessary but sufficient (or sometimes efficient) and thus which will give rise to legal liability in tort.

See: causation, legal cause
Krauss v. Greenbarg, C.C.A.Pa., 237 F.2d 569, 572
Giles v. Moundridge Milling Co., 351 Mo. 568, 173 S.W.2d 745, 750.


Liability | Haftung

Liability is the legal obligation of a person to be held responsable for the injury to another whether that injury is contractual (breach of contract) or tortious (negligence, strict liability, intentional tort).

The consequence of a finding of a prima facie tort if unrefuted by some affirmative defence rise to legal liability in tort.

Mayfield v. First Nat. Bank of Chattanooga, Tenn., C.C.A.Tenn., 131 F.2d 1013, 1019.

Insurance, liability | Haftpflichtversicherung

See insurance

Extent of liability | Haftungsausfüllung

In German law the court distinguishes between a finding of negligence and a determination of the extent of damages. The determination of the extent of damages establishes what remedies the defendant has against the plaintiff, e.g. how much she will be compensated. The common law does this as well though is not as doctrinally strict in that the German determination of negligence and its extent corresponds also to another principle which does not appear to have an analogue in the common law that injury and damage be united in one person (Tatbestandprinzip). The common law reaches the same result albeit using a slightly different conceptual apparatus. In a case where there was no unity of injury and damages, that is where there is an injury but no damages (damnum sine injuria) the common law would award nominal damages.

Foundation of liability | Haftungsgrund

The foundation of liability is the determination of the negligence of the tort feasor and the injury arising therefrom to the plaintiff. It does not however concern the determination of the extent of liability (q.v.). In German law that is a separate inquiry, though in the common law the separation is not as distinct.

Joint and several liability | Gesamtschuldnerische Haftung

When several tort-feasors actions result in a tortious injury to the plaintiff and where each of their actions independantly would have led to the injury they shall be considered jointly and severally liable. The plaintiff may further choose to sue any or all of them either individually or as a group.

Insurance liability | Haftpflichtversicherung

See liability insurance

Proportional liability | Anteilshaftung

At common law the all-or-nothing rule (q.v.) required that a plaintiff have either a full recovery against defendant or none at all. This was seen to have led to substantive injustice in that somewhat negligent defendants would be able to avoid liability entirely – or be implicated for the entirety of the damages plaintiff suffered.

Proportional liability proposes to remedy the all-or-nothing rule by permitting a defendant to be held liable for damages only in proportion to their fault in creating the accident. Thus if the defendant were found only to have contributed to 20 percent of the tort (leaving aside for the moment the question of how that determination is made and whether a sufficient cause can only be partially responsible for a consequence) the defendant would be only liable for twenty percent of the damages. Thus proportional liability often arises in questions of joint and several liability.

Contributory negligence vs. comparative fault

Proportional liability also arises in cases of contributory negligence / comparative fault. At common law the rule of contributory negligence held that if the plaintiff were at all responsible for their misfortune – that is if the plaintiff’s own negligence contributed to the tort – be that contribution ever so small the plaintiff would have no recovery because of the all-or-nothing rule. This rule was also seen to be injust and in some jurisdictions has been replaced with the rule of comparative fault. According to the rule of comparative fault a finding of plaintiff’s negligence will reduce the award of damages to the plaintiff. Thus if plaintiff were ten per cent at fault for creating their injury then the damage award to the plaintiff would be reduced by ten percent.

In cases of products liability liability according to market share and epedemiological proof can be used to avoid the problems of causal indeterminicity – although they raise other problems of indeterminicity and may undermine legal certainty. In those cases proof is obtained via statistical evidence and thus the rationale of proportional liability appears again.

Market share liability

The rationale of proportional liability can arise first in cases where it is known that the plaintiff was injured by a product, but not known which manufacturer created the product. There a proportional market share liability may be applied, at least where it is known that all such products were in fact defective. Thus if plaintiff ingests a defective drug, and a certain corporation has fifteen percent of the market share then the defendant would be fifteen per cent liable for the damages arising out of their injury. See, e.g.

Hamilton v. Beretta U.S.A. Corp., 2001 N.Y. LEXIS 946, *; 96 N.Y.2d 222; 750 N.E.2d 1055; 727 N.Y.S.2d 7 (Market share liability where handgun manufacturer unknown due to negligence of manufacturer).

Epedemiological Proof

The second instance, epedemiological proof, arises where it is certain that the plaintiff was injured but uncertain what the cause was. For example a corporation negligently dumps toxic wastes. As a result the rate of cancer in that zone doubles. Plaintiff might be able to argue that the defendant should be fifty per cent liable for their cancer.

Libel | Mündliche Beleidigung

Libel is written defamation of the defendant by the plaintiff. As the defamation is in writing there is less cause for doubt as to the statement and the statement can be presumed to have had greater impact than unpublished spoken words. For these reasons damages in cases of libel are presumed.
Truth is an affirmative defence to libel, and must be proven by the plaintiff.

Bright v. Los Angeles Unified School Dist., 51 Cal.App.3d 852, 124 Cal.Rptr. 598, 604.
Washer v, Bank of America Nat. Trust & Savings Ass'n, 21 Cal.2d 822, 136 P.2d 297, 300.
N. Y. Times v. Sullivan, 376 U S. 254. 11 L.Ed.2d 686.

Libel Per Se

One need not prove damages in cases of libel per se. Falsely accusing another of being stricken by a loathesome disease, of sexual immorality, of professional incompetence, or having committed a crime

Robinson v. Nationwide Ins. Co., 273 N.C. 391, 159 S.E.2d 896, 898.

Licence | Lizenz

A limited right to travel over or use the property of another. A licence may be the object of a contract or gratuitous. A gratuitous licensee may have difficulty bringing an action in tort against the licensor unless the licensor was grossly negligent in failing to reveal some hidden danger on their property which they reasonably ought to have indicated.

The common law distinguished between invitee, licensee, and trespasser in cases of torts against an owner.
An invitee is one who goes onto another's premises in response  [*5]  to an express or implied invitation and does so for the mutual benefit of both the owner and himself. A licensee, on the other hand, "is one who enters onto another's premises with the possessor's permission, express or implied, solely for his own purposes rather than the possessor's benefit." Mazzacco, 303 N.C. at 497, 279 S.E.2d at 586-87. The classic example of a licensee is a social guest. See, e.g., Crane v. Caldwell, 113 N.C. App. 362, 366, 438 S.E.2d 449, 452 (1994). Lastly, a trespasser is one who enters another's premises without permission or other right.

There is a descending degree of duty owed by a   landowner based upon the plaintiff's status. Id. at 561, 467 S.E.2d at 63.

The highest degree of care a landowner owes is the duty of reasonable care toward those entrants classified as invitees. See Roumillat, 331 N.C. at 64, 414 S.E.2d at 342. Specifically, a landowner owes an invitee a duty to use ordinary care to keep his property reasonably safe and to warn of hidden perils or unsafe conditions that could be discovered by reasonable inspection and supervision. See Pulley, 326 N.C. at 705, 392 S.E.2d at 383.

A landowner's duty toward a licensee, on the other hand, is significantly less stringent. The duty of care owed to a licensee by an owner or possessor of land ordinarily is to refrain from doing the licensee willful injury and from wantonly and recklessly exposing him to danger. McCurry v. Wilson, 90 N.C. App. 642, 645, 369 S.E.2d 389, 392. Thus, a licensee enters  another's premises at his own risk and enjoys the license subject to its concomitant perils.  See Turpin v. Our Lady of Mercy Catholic Church, 20 N.C. App. 580, 583, 202  [*7]  S.E.2d 351, 353 (1974).

Finally, with respect to trespassers, a landowner need only refrain from the willful or wanton  infliction of injury. See Bell v. Page, 271 N.C. 396, 156 S.E.2d 711 (1967). Willful injury constitutes actual knowledge of the danger combined with a design, purpose, or intent to do wrong and inflict injury. See Howard v. Jackson, 120 N.C. App. 243, 246, 461 S.E.2d 793, 797  (1995). Similarly, a wanton act is performed intentionally with a reckless indifference to the  injuries likely to result. Id.

Those jurisdictions which reject the traditional rule  generally adopt a “reasonably prudent person under the circumstances” test – which would still distinguish between invited and uninvited guests.

The harder case is that of liability for a tenant who is the victim of a burglary. There, landlords have a "common-law duty to take minimal precautions to protect tenants from foreseeable harm," including a third party's foreseeable criminal conduct ( Jacqueline S. v
City of New York, 81 NY2d 288, 293-294, rearg denied 82 NY2d 749; see, Nallan v Helmsley-Spear, Inc., 50 NY2d 507, 519-520). A tenant may recover damages, however, only on a showing that the landlord's negligent conduct was a proximate cause of the injury ( Miller v State of New York, 62 NY2d 506, 509).

Burgos v. Aqueduct Realty, 92 N.Y.2d 544; 706 N.E.2d 1163; 1998 N.Y. LEXIS 4039; 684 N.Y.S.2d 139

Loss | Schaden

The fact of no longer having the disposition of an object or right. Thus loss is synonymous to damages (q.v.). Mason v. City of Albertville, 276 Ala. 68, 158 So.2d 924, 927.


Economic / pecuniary | Vermögensschaden

Economic losses are those losses objectively measurable. They certainly include all material objects, i.e. chattel and real property. Under the better view losses to abstract non-corporeal rights such as patent, one’s reputation and goodwill will also be considered economic losses provided one can prove a lost stream of future income resulting from the injury. Economic losses do not however include any compensation for pain and suffering, emotional distress or other non-material rights which cannot be valued by the market.

Pure economic | Reiner Vermögensschaden

Pure economic loss has been defined as "damages for inadequate value, costs of repair and replacement of the defective product or consequent loss of profits--without any claim of personal injury or damages to other property . . . ." ' [Citations.]" (Sacramento Regional Transit Dist. v. Grumman Flxible (1984) 158 Cal. App. 3d 289, 294 [204 Cal. Rptr. 736].

In cases of strict products liability the tort feasor will be held liable for direct injuries to the person but not for purely economic injuries i.e. torts where there is no injury to the person. The difficult cases are where there is damage to corporeal property but no personal injury. There the line between contract (economic loss) and tort (material damage) proves hardest to draw. Decisions generally allow recovery for consequential corporeal property damage. Seely v. White Motor Co. (1965) 63 Cal. 2d 9 [45 Cal. Rptr. 17, 403 P.2d 145]

In negligent torts the liability of a manufacturer will be limited to physical injuries and possibly also property damage, i.e. corporeal damages. No recovery for purely economic losses is. Wyatt v. Cadillac Motor Car Division, 145 Cal. App. 2d 423, 426, 302 P.2d 665, disapproved on other grounds in Sabella v. Wisler, 59 Cal. 2d 21, 31, 27 Cal. Rptr. 689, 377 P.2d 889. (Dicta).

The difficult issue is whether property damage should be compensated and if so whether consequential damages arising out of property damage should be compensated.

The issue of consequential damages for a tort arises out of eight possible basic cases:

                                 Strict       Negligence
                                 Liability
I) Personal Injury
II) No Personal Injury
III) Corporeal Property Damage
IV) No corporeal property damage

Any of these eight cases can be litigated under a theory of tort or breach of contract. In theory purely economic losses will be recovered under a theory of warranty and personal injury or corporeal property damage will be remedied under a theory of tort. The confusion arises however – aside from the variety of possible fact patterns – in the case of consequential damages. The best guiding principle is that contractual losses are governed by the theory of contractual freedom: that parties to a contract can negotiate the terms thereof. Thus under a theory of contract a plaintiff would not be able to recover for their economic losses due to understimating the economic worth of their bargain. In contrast tort’s are predicated upon a non-consenting relationship. Thus where there is an injury to the person, and even to the persons property, they should be allowed the consequential damages flowing therefrom. However concerns over adequate compensation of plaintiffs and deterrence of defendants lurk behind these principles. The case law in this field is in fact contradictory, see e.g. J'Aire Corp. v. Gregory (1979) 24 Cal. 3d 799 [157 Cal. Rptr. 407, 598 P.2d 60].


Loss of Consortium : Verlust des Liebespartners

The right of a spouse to an award of damages for the loss of services and affection in cases where their spouse was the victim of a tort; Abgeleitete Anspruch des Ehemanns im Fall der Tötung oder Verletzung seiner Ehefrau.

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Malice | Arglist

The intentional doing of an act without justification or excuse and intending to do harm. Malice is one of the preconditions which if found will support an award of punitive damages.

in Libel:
Becker v. Brinkop, 230 Mo.App. 871, 78 S.W.2d 538,

in defamation:
Rice v. Winkelman Boys Apparel, Inc., 13 Mich.App. 281,
New York Times Corp. v. Sullivan, 11 L.Ed.2d 686.

Market share liability | Marktanteilshaftung

See: proportional liability

Mass torts | Massenschadensfälle

A mass tort is a collective tort, that is an injury to a group of persons. Factually speaking there appear to be two instances of mass torts: one source of injury at one point in time, such as an airline accident, or several victims with several tort-feasors but one common instrumentality such as a defective medicine.

Master and servant | Arbeitgeber und Arbeitnehmer

The relation of employment wherein one person, the master, bids and controls the other, the servant, to do their will in exchange for remuneration. Master’s will ordinarily be liable for the torts of their employees committed in the scope of their employ.

An employer can be liable for the torts of their employee committed in the scope of their employment under a theory of vicarious liability (see: respondeat superior).

Whether an employer will be liable for the tort committed against their employee will depend partly on the circumstances. At common law the fellow servant rule (q.v.) denied such liability where the tort was committed by a co-worker. The fellow servant rule has been abrogated in most if not all jurisdictions.

See also: Employee vs. Independent Contractor, Fellow servant rule, respondeat superior, vicarious liability.

Brenner v. Socony Vacuum Oil Co., 236 Mo.App. 524, 158 S.W.2d 171, 174. I75; Relling v. Missouri Ins. Co., 153 S.W.2d 79;
Pantell v. Shriver Allison Co., 61 Ohio App. 115, 22 N.E.2d 497, 499.

See: Agency

Means of proof | Beweismittel

The material method used to prove a fact asserted, e.g an affidavit (d. Bestätigung; fr. attestation). See: evidence.

Medical malpractice | Medizinische Behandlungsfehler

A tort committed by a physician against their patient. Unless a patient consents to being treated by their physician the physicians act would constitute battery. Naturally patient’s consent, but such consent must be informed (see informed consent). Even if the patient has given informed consent they have consented only to non negligent treatment: that is the physician still has a duty to perform their service non-negligently.

Kosberg v. Washington Hospital Center, Inc., 129 U.S.App.D.C.  322, 394 F.2d 947, 949.

Mere Negligence

See: Negligence, Due care

Minor children | Minderjährige

See Children

Misrepresentation

See deceit

Mitigation | Schadensminderung

A synonym for avoidable consequences (q.v.) Mott v. Persichetti, Colo.App., 534 P.2d 823, 825. Also see:
damages, mitigation of.

Monetary Damages | Schadensersatz in Geld / Geldentschädigung (?)

Monetary damages are the ordinarily presumed remedy in the common law. They seek to compensate the injury of the plaintiff via a determination of the cash equivalent of the loss to the defendant, the interest thereon, and the pain and suffering suffered by the defendant. They must be distinguished from real restitution.

The usual meaning is ''pertaining to coinage , but it has been held to include personal property.
In re Kipp's Will, 37 N.Y.S.2d 541, 543

See damages, monetary

Moral injuries | Normativer Schaden

Injuries to rights other than economic rights. Thus injuries to one’s personal honour (Ehre) but also injuries to other non-material interests such as the pain and suffering arising from a tort. Such injuries give rise to at least nominal damages (q.v.). See also: damnum sine injuria,

-N-

Necessity | Notstand [?]

Where a defendant is compelled by overwhelming force to commit a tort that compelling force provides the excuse (q.v.) of necessity. The defendant will be exonerated C.f. justification.
Bykofsky v. Borough of Middletown, D.C.Pa.,
401 F.Supp. 1242, 1250.

Negligence | Fahrlässigkeit (als Delikt) / Fahrlässigkeit (als Schuldform)

The failure to meet the duties of social obligation, general judged by the standard of a reasonably prudent person. See standard of care, due care.

Amoco Chemical Corp. v. Hill, Del.Super., 318 A.2d 614, 617.
Pence v. Ketchum , 326 So. 2d 831, 836 (La. 1976)

Comparative negligence | Mitverschulden (am: Quotelung)

See liability: proportional – contributory negligence / comparative fault

Contributory negligence

See liability: proportional – contributory negligence / comparative fault

Criminal negligence | Fahrlässigkeit als strafrechtliche Schuld

Criminal negligence is that negligence which willful, wanton and malicious. A higher standard than ordinary negligence which is the failure to act as a reasonably prudent person. To impute a criminal as opposed to civil liability this standard must be greater than recklessness but must display some culpable intent, i.e. wanton indifference or malice.

Slight negligence | Leichte Fahrlässigkeit

Contresens: Slight negligence means failure to exercise the foresight and circumspection that an extraordinarily prudent person would exercise.

Briggs v. Spaulding, 141 U.S. 132, 11 S.Ct. 924, 35 L.Ed. 662.

Ordinary negligence | Normale Fahrlässigkeit

The standard of ordinary negligence is the failure to act as a reasonably prudent person. Failure to meet this standard of care (q.v.) will lead to a finding of negligence in tort.
Briggs v. Spaulding, 141 U.S. 132, ll S.Ct. 924, 35 L.Ed. 662.

Gross negligence | Grobe Fahrlässikeit
Gross negligence is negligence which while reckless and indifferent is not sufficiently malicious as to rise to criminality. It is however a higher standard of negligence than mere negligence.

Glaab v. Caudill, Fla.App., 236 So.2d 180, 182, 183, 185.
Claunch v. Bennett, Tex.Civ.App., 395 S.W.2d 719, 724;
Snyder v. Jones, Tex.Civ.App., 392 S.W.2d 504, 505, 507.

Per se negligence | Per se Fahrlässigkeit

Should be seen as a form of strict liability: an imputation of negligence where there is no showing of fault. Statutes sometimes impose per se negligence for certain acts or ommissions. Ironically as strict liability in commerce, i.e. products liability is being adopted, instances of per se negligence in the non-commercial context have diminished as they are formalistic, inflexible and substantively unfair.

Negligent infliction of emotional distress

This claim, a very recent development in the common law, purports to create a claim for purely emotional losses due to the negligence of another. It is not recognized in all jurisdictions.

No-fault Liability | Gefärdungshaftung

Liability without fault. Liability where there is no negligence or no need to prove negligence on the part of the tort-feasor.
See: strict liability, absolute liability

Non-delegable duties | Nicht delegierbare Pflichten [???]


Nominal damages | Nominal Schadensersatz / symbolischer Schadensersatz

An award to a plaintiff of a symbolic sum to fullfil the satisfaction interest (Genugtuung) of the injured plaintiff; Purely symbolic damages awarded to remedy an injury to a plaintiff where no damages occur. Q.v. damnum sine injuria. The objective of nominal damages is to provide emotional satisfaction (Genugtuung) to the plaintiff.

Non-Pecuniary Losses | Nicht Vermögensschäden

Those injuries which have a material existence but to which no monetary value can be ascribed, e.g. antique family posessions.

Non-material damages | Immaterialler Schäden

Those injuries which may or may not have an economic value but which in all cases do not concern material things such as personal or real property.

Nuisance

Unreasonable unlawful or unwarranted use of one’s property such that it injures or obstructs the rights of another. Nuisances can be the basis for an injunction (q.v.). Nuisances may be public, private, or mixed. Public nuisances interfere with the rights of all though possibly to a different degree. (Kelley v. New York, 6 Misc. 516, 27 N.Y.S. 164.) Private nuisances interfere with the rights of a single individual or a very few persons. (Mandell v. Pasquaretto, 76 Misc.2d 405, 350 N.Y.S.2d 561, 566; pur Industries, Inc. v. Del E. Webb Development Co., 108 Ariz. 178, 494 P.2d 700, 705.) Mixed nuisances do both, for example the defendants polluting activity creates both noxious odors, a public nuisance, and destroys the fish in a private lake owned by one person, a private nuisance.

It is possible for plaintiff to prevail on causes of action for public nuisance and for negligence where it has suffered economic loss, but no personal or property damage.

Herman v. Cardon, 23 Ariz.App. 78, 530 P.2d 1115, 1118.
Awad v. McColgan, 357 Mich. 386, 98 N.W.2d 571, 573.

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Occupiers’ Liability | Haftung von Grundbesitzern

The liability of a landowner for a tort occuring on his or her property was dependant at common law  upon a distinction between trespassers, licensees, invitees and guests. Trespassers would have virtually no rights, whereas guests would. Statute and case law have sometimes dropped this distinction.

See: License

Ommission

The failure to act. Just as an action can be negligent a failure to act can also be negligent if the law imposes a duty to act. See: act.

Ordinary Negligence

Failure to exercise the care of a reasonably prudent person. See due care (syn.). Also: Briggs v. Spaulding, 141 U.S. 132, 11 S.Ct. 924, 35 L.Ed. 662.

-P-

Patent | Patent

An exclusive right of the owner of the patent to enjoy a monopoly over the use of their invention for a limited period in time.

Per Quod (Libel Per Quod, Slander Per Quod)

Per quod in slander means proof of special damages is required. Libel per quod means the requirement of proof of extrinsic circumstances

General Motors Corp. v. Piskor, 27 Md.App. 95, M0 A.2d 767, 783.

Per Se (Slander Per Se, Libel Per Se)

Slanderous or libelous statements are considered “per se” under the following four circumstances. 1) False accusation of criminality 2) False mputation of loathesful or offensive disease 3) False accusation of the unchastity of a woman 4) False statements which tend to injure a person in their trade, business, or office.

In such cases proof of particular damages, i.e. of ‘special damages’ will not be required.

Munafo v. Helfand, D.C.N.Y., 140 F.Supp. 234, 238.

Personality rights | Persönlichkeitsrechte

Personality rights were not a concept of the common law: however the growth of an information society with instant production, reproduction, and dissemination of writings, images, and sounds has led to the creation of a concept of the rights of the person.

These rights can be understood first as certain of the classic common law torts: defamation; action on the case; and then later the actions for deceit and passing off. More recently, either by decisions of high courts or statute, rights of privacy are also included in the concept of personality rights.

See also: Right to Privacy

Plaintiff | Kläger

The party which initiates a lawsuit against a defendant. Ordinarily the plaintiff bears the burden of proof as to the elements of their claim.

City of Vancouver v. Jarvis, 155 P.2d 591, 593 (Wash.).

Pollution | Umweltverschmutzung

The contamination of air, water and soil by poisonous or noxious substances or noises. Some nuisances cause pollution. Toxic torts (q.v.) are examples of pollution as are some mass torts (q.v.).

Posession | Besitz

Posession is the fact of occupation or use of an object without regard to the legal right to do so. Thus posession is either rightful or wrongful. Rightful posession is one of the rights of property (q.v.), namely the right of use or usus. The right of property consists in the absolute and exclusive control of the object and  includes the rights of usus, use, abusus, abuse, and fructus, fruits, that is all that grows thereon. Posession is the right of usus i.e. to enjoy and dispose of an object or right.

Field  Furniture Co. v. Community Loan Co., 257 Ky. 825, 79 S.W.2d 211, 215.

Prescription / Statute of Limitations |Verjährung

See: statute of limitations.


Prescription Period | Verjährungsfrist

See statute of limitations.

Prima Facie | Anscheinsbeweis

A prima facie proof is one where the plaintiff has met their burden of production, having introduced evidence which tends to prove their case such that if unrefuted the defendant will suffer a directed verdict. The defendant is of cours afforded the opportunity to rebut that evidence.

Cartwright v. Golub Corp., 51 A.D.2d 407, 381 N.Y.S.2d 901.
White v. Abrams, C.A.Cal., 495 F.2d 724, 729.
Husbands v. Com. of Pa., D.C.Pa., 395 F.Supp. 1107, 1139.

Prima Facie Tort

A facial tort, that is a rebuttable determination of the existence of a legal duty, breach of that duty, and damages which flow therefrom due to proximate and legal causation.

Every prima facie tort consists of the following elements:

1) The existence of a legally recognized (as opposed to moral) duty of the defendant to the plaintiff
2) A breach of that duty by the plaintiff
3) But-for Causation (sometimes known as cause in fact or causa sine-qua-non): that is that the defendants breech was a fact which caused the plaintiff’s injury
Legal Causation (sometimes known as proximate cause): that is that the defendants act was also so close in time to the plaintiffs injury that it is a sufficient cause to create that injury a nd that there was no intervening or superseding cause resulted independantly in the accident.

In order to avoid a directed verdict the plaintiff must establish a prima facie case. That is he must introduce sufficent evidence such that the fact finder could reasonably decide one way or another on the basic elements of the tort. So a prima facie tort is the introduction of sufficient evidence such that a finder of fact could reasonably decide one way or the other on each of the above four elements of the tort.

See also: duty, breach, cause-in-fact, proximate cause.

Principal | Geschäftsherr

One who employs an agent or a servant. See master and
servant, agency, agent.

Private Nuisance

See Nuisance, Private.

Privacy | Privatheit / privater Bereich

The notion that the individual has a legal right to be let alone. See: Right to Privacy

Privilege

A relative subjective legal right particular to an individual person rather than to persons generally.

The tort of libel or slander will not lie where the communication was privileged.

Privilege is either absolute or conditional. Absolute privilege protects the speaker regardless of their motive. It exists in cases of legislative debates, judicial arguments, and military service. Conditional or qualified privileg protects statements where there is no showing of actual malice on the part of the speaker. Qualified privilege may be claimed in matters of public interest or where necessary to protect one’s private interests and mate to a person having an interest in the same matter.
Saroyan v. Burkett, 57 Cal.2d 706, 21 Cal.Rptr. 557, 558, 371 P.2d 293.

Privileges are generally based either on consent or law. Legal privileges exist generally because of some overriding public interest.

Sims v. United Pacific Ins. Co., D.C. Idaho, 51 F.Supp. 433, 435
Brooks v. Texas Employer’s Ins. Ass'n, Tex.Civ,App. 358 S.W.2d 412, 414.

Privity of contract | Rechtsverhältnis zwischen Vertragspartnern

At common law for tort or contractual liability to flow there was a requirement of privity, i.e. direct negotiation, between the victim and tort feasor. Thus a manufacturer would not have been liable for a defective good. This rule has changed in late capitalism. Today a finding of privity is not necessary in a claim on a theory of strict liability for a defective product which causes an accident. Thus not only the retailer but also the manufacturor and possibly even the wholesaler can be sued on a theory of strict negligence.

Presentation of evidence | Beweisaufnahme

The hearing before the court of the methods of proof.

Procedure

Those rules of the law which determine the existence or not of other rights. Procedure is the framework within substance is set. Substantive rights are the actual claim on the merits as opposed to the rules which condition and determine the enforcement of those rights.

At common law there was a unity of procedural write and substantive action. Thus substance and procedure were unified. However the limitations on the number of writs and strict legalism led first to the creation of courts of equity and ultimately to the introduction of codes of civil and criminal procedure which replaced the formalistic writs of the common law. Despite this fact the actions which those writs served still exist. Thus while some modern torts such as negligent infliction of emotional distress or strict liability did not exist at the common law others such as trespass, action on the case, trover, conversion etc. did – and still do. The extinction of a common law right must be by express legislative act.

Civil

The rules governing procedures in all fields other than criminal law. Even administrative law is governed by rules of civil procedure, but only indirectly: special administrative courts do exist, with relaxed rules of procedure, but they may always be appealed from to the civil courts and employ rules which while simplified for lay persons nevertheless paralell the rules of civil procedure.

Criminal

Those rules of procedure which govern the law of crimes, i.e. those rules which may deprive a person of life or liberty. Criminal procedure has, like civil procedure, been almost universally codified. Under criminal procedure higher standards of proof are invoked than in civil cases. See: standard of proof.

Products Liability | Produkts(gefährdungs)haftung

That field of law which addresses defective products. A defective product gives rise to a presumption of negligence and the plaintiff may have a cause of action against the producer as well as against the seller and possibly even against intermediaries in the chain of commerce. The presumption is irrebutable. Thus product liability is in fact a form of per se liability. All other elements of a prima facie tort must be proven to prove a claim of strict product liability, and the defendant can avail themselves of the usual defenses.

It is clear that a defectively manufactured product will give rise to a claim in products liability. It is less clear, though often admitted, that a defectively designed product will also give rise to such strict liability.

Cobbins v. General Acc. Fire & Life Assur. Corp., 3 Ill.App.3d 379, 279 N.E.2d 443.

See: strict liability, mass torts, class action, toxic torts.

Prohibition of Enrichment | Bereicherungsverbot | Ni Perte Ni Profite

The principle that the reparation to a plaintiff shall not work an advantage to the plaintiff greater than their injury. In the common law however this principle is riddled with exceptions.

Proof by a preponderance of the evidence (lit. Reasonably probable). | Überwiegende Wahrscheinlichkeit

The legal standard of proof in a civil (i.e. non criminal) trial: the plaintiff must prove the events that they assert are more likely than not.

State v. Dubina, 318 A.2d 95, 97.

Property | Eigentum

Property is the absolute right to use, abuse and enjoy profits from an object whether corporeal (material) or incorporeal (abstract). These rights are enjoyed against all persons other than the sovereign.

Labberton v. General Cas. Co. of America, 53 Wash.2d 180, 332 P.2d 250.

See: also posession, property damage


Property Damage

Strictly speaking property damage should include damages both to immaterial noncorporeal abstract property rights – such as good-will or copyright – and also concrete material things, whether movable (personal) or real (land or appurtenances thereto). Unfortunately the English legal terminology uses these terms with less precision than the civil law which distinguishes between abstract non-material property rights such as patents and copyrights on the one hand and material corporeal property, of which there are two types, movables (personal property) and immovables (real property) on the other. Because of this imprecision in the legal language property damage is often used as short-hand for material damage, whether to real property (immovables) or personal property (movables) but not damage to abstract or speculative rights – though logically speaking an injury to good will, an abstract immaterial right can be economically valued and strictu sensu is a property. Property damage in the sense of damages to material things is clearly a form of economic loss.

The relevance of the distinction arises in the context of the question of whether consequential damages shall be awarded in cases of pure economic loss. Whether speculative or contingent future rights such as lost wages are also an economic loss could be questioned depending on the definition of property and economic value.

Travelers Indem. Co. v. Chumbley. Mo.App., 394 S.W.2d 418, 422

See: property, pure economic loss, consequential damages.


Proximate Cause | Nicht zu entfernte Ursache

Synonym for legal cause or legal causation. See: Causation

Wisniewski v. Great Atlantic & Pac. Tea Co,, 226 Pa.Super. 574, 323 A.2d 744, 748.
Herron v. Smith Bros., 116 Cal.App. 518, 2 P.2d 1012, 1013.

Punitive Damages : Strafschadensersatz

Damages awarded to a plaintiff where the defendant's tortious action is determined to have been willful, wanton and malicious. Ordinarily the award is thrice the value of the injury, in addition to the injury itself. The value of punitive damages may vary by statute and can also include the costs and fees of counsel and interest.

Synonym for exemplary damages (q.v.)
James v. Public Finance Corp., 47 C.A.3d 995, 121  Cal.Rptr. 670, 675.
Joseph v. Hustad Corp., 454 P.2d 916, 918.

-Q-

Quasi-Contract
A quasi-contract is the legal act of a person, by which he obligates himself towards another without any agreement between them. For example, a physician who treats an unconscious patient at the scene of an accident will have an action in quasi-contract for the cost of her services.

Andrews v. O'Grady,
44 Misc.2d 28, 252 NYS.2d 814, 817

-R-

Real Restitution

The material replacement of a material object damaged or destroyed by the tort of the defendant.
See damages, restitution (~syn.)

Recklessness | Rücksichtslosigkeit / Willful Negligence / Wanton Negligence.

Having a wanton disregard for the lives and property of others. An indifference beyond mere error recklessness manifests a willful indifference to the consequences of one’s actions. Can be the basis for a determination of punitive damages (q.v.)

Duckers v. Lynch, 465 P.2d 945 (Kans.),
Tyndall v. Rippon, 61 A.2d 422 (Del.)
Wolters v. Venhaus, 350 Ill.ApP. 322, 112 N.E.2d 747; Clarke v.
Storchak, 52 N.E.2d 229 (Ill.), appeal dismissed 322 U.S. 713, 88 L.Ed. 1555.
Tighe v. Diamond, 149 Ohio St. 520, 80 N.E.2d 122, 37 O.O. 243
Duncan v. Lumbermen's Mut. Casualty Co., 91 N.H. 15, 23 A.2d 325, 326. (1941)

Reduction of the burden of proof | Beweiserleichterung

In German law it is possible to reduce the standard of proof during trial. That is not only can the burden of proof shift, it can also be reduced. This is not the case in the common law.

Regulatory Agencies

Mass industrial society has created mass accidents and grave injuries. To attempt to govern this reality regulatory agencies exist which first propose to guaranty standards to consumers and second to provide remedies under universal insurance programs such as accident, unemployment, and health insurance. Their proceedings are governed by administrative regulation rather than statute. See: procedure.
 


Remedies | Sanktionen

It is a maxim of law that for every wrong there is a remedy. Remedies are those legal aids that may be invoked by plaintiffs to cure the injuries done to them by defendants. There are a variety of remedies: monetary damages, injunctions, specific performance, and replevin among others such as writs of mandamus and habeas corpus. The remedies which most concern tort and contract law are money damages, injunction, and specific performance. Because the common law prefers money damages and does not ordinarily award specific performance these three remedies are listed in decreasing order of frequency.

Long Leaf Lumber, Inc. v. v. Svolos, La.App., 258 So.2d 121, 124
Chelentis v. Luckenbach 247 U.S. 372, 38 S.Ct. 501, 503, 62 L.Ed- 1171.

Res ipsa loquitor | Anscheinsbeweis

Literally ”the thing speaks for itself”.
A fact pattern which being so obvious facially as having resulted from negligence that the court infers negligence from the very facts. This can also be seen as a form of reductio ad absurdam. Legally speaking the rebuttable presumption that where the instrumentality in the defendants posession is implicated in the destructive injury that would not ordinarily happen without negligence the defendant will be presumed to have been negligent according to this principle.

Hillen v. Holker Const. Co., Tex.Civ.App., 4M S.W.2d
113, 115.

Respondeat superior | Haftung des Arbeitgebers für die Delikte seiner Arbeitnehmer (ohne eigenes Verschulden)

A doctrine of vicarious liability of an employer for the torts committed by his or her employee in the course of their employment.

Burger Chef Systems, Inc. v. Govro, C.A.Mo., 407 F.2d 921, 925.
Shell petroleum Corporation v. Magnolia Pipe Line Co., Tex.Civ.App., 85 S.W.2d 829, 832.

The doctrine is inapplicable if the servant is acting outside the scope of their authority. (Rogers v. Town of Black Mountain, 224 N.C. 119, 29 S.E.2d 203, 205) But if the deviation from their duties is only slight or incidental the employer may nevertheless be liable. (Klotsch v. P. F. Collier & Son Corporation, 349 Mo. 40, 159 S.W.2d 589, 593, 595)


See also:
Adams v. South Carolina Power Co., 200 S.C. 438, 21 S.E.2d 17, 19, 20; Employee vs. Independent Contractor, Fellow servant rule

Restitution/Restitutionary Rights | Naturalrestitution

The right of the plaintiff to be restored what has been lost to the defendant tort feasor through the defendants tortious conduct. Restitution is an alternative remedy to money damages in anglo-american tort law.

Naturalrestitution seeks to restore the status quo ante and thus defends the victims interest in their integrity. It is not however a unique remedy but can also be used in conjunction with other remedies such as money damages. Naturalestitution is  however one of three alternative remedies in German tort law. The other two are kompensation, which seeks to restore the monetary loss to the plaintiff, and reasonable compensation for non-pecuniary losses, which along with Schmerzengeld would be subsumed into the common law term of an award for damages due to pain and suffering. Kompensation is available when Naturalrestitution is not possible or would be meaningless, for example in cases of injuries to personality rights. In principle in German law only pecuniary injuries (Vermögensschaden) are compensable though in practice  some non-pecuniary injuries can be compensated.

See: Real Restitution

State v. Yarnett, 110 Vt. 221, 3 A.2d 521, 525, 526.

Explorers Motor Home Corp. v. Aldridge, Tex.Civ.App. 541 S.W.2d 851, 852.


Reversal of the burden of proof | Beweislastumkehr

The reversal of the burden of proof ordinarily does not occur in a trial at common law. It can however occur in German law. What reverses in the common law is the burden of production.

Right to an Injunction | Unterlassungsanspruch

An injunction is an order to cease and desist from committing a tort which has already occurred in the past. Injunctions may be preliminary, temporary, or permanent. They are an equitable remedy.
See also: nuisance

Right to Privacy / Right (or rights) of the person (or personality) | Persönlichkeitsrechte: (lit. Right of personality)

In the post war era, first France, and the United States, then Germany, and finally Britain recognized a generalized right of privacy. This right can be said to include a right to one's image (Recht auf eigenes Bild), and a right to non-divulgence of true but personal facts (public disclosure of private facts). American law also includes:

-a right against misappropriation of one's identity,

-a right against intrusion on ones sphere of integrity

-a right against placing the plaintiff in a false light.

With the adoption of the human rights act in Britain American law may (or may not) influence British law in this field. Privacy rights protect against wiretapping and may extend to the heirs of a decedent.

Whalen v. Roe, 429 U.S. 589, 97 S.Ct. 869.
Warren and Brandeis, The Right to Privacy, 4 Harv.L.Rev. 193.

The American rights are discussed briefly below.

Appropriation / Misappropriation (wrongful publicity)


The right to one’s own image and voice. This right protects against the wrongful acquisition and dissemination of the plaintiff’s image or voice.
Carlisle v. Fawcett Publications, 201 Cal.App.2d 733, 20 Cal.Rptr. 405.

Intrusion

Intrusion is the wrongful collection of information about the plaintiff. (Ford ; Motor Co. v. Williams, 108 Ga.App. 2I, I32 S.E.2d 206). It includes telephone surveillance
(LaCrone v. Ohio Bell Tel. Co., 114 Ohio App. 299, 182 N.E.2d 16, 19 O.O.2d 236), as well as “crank” telephone calls or other persistent and unwanted telephone calls.
(Housh v. Peth, 165 Ohio St. 35, 133 N.E.2d 340, 59 O.O. 60).

Public Disclosure of Private Facts

Public disclosure of private facts, even where such facts are true, can be punished as a tort. Melvin v. Reid, 112 Cal.App. 285, 297 P. 91;


Risk distribution | Risikoverteilung

The level of risk and burden of damages which is leveled upon an individual or group.

Tort law seeks to determine the correct distribution of risk and responsability. Are losses better left alone? If they should be redistributed should they be redistributed according to fault or in an effort to spread the risk throughout society? When losses are shifted from the individual to another individual should such be done based on a theory of punishment, retribution/compensation, deterrence? Should losses be redistributed only based on material facts or also on the basis of abstract moral considerations or non-market injuries such as pain and suffering? Risk distribution is the answer that a society develops to those questions: the risk and burden of loss should be placed on whom? The complexity and indeterminicity of these abstract questions explains the theoretical interest of tort law.

Rule-Exception Principle | Regel-Ausnahme Prinzip

The general structure of the law, being a series of rules often having exceptions and even having exceptions to those exceptions. E.g. libel is a tort, but truth is a defence.

-S-

Satisfaction interest | Genugtuung

The interest of a plaintiff to have remedied not only the physical or monetary injuries inflicted by a tort-feasor but also their moral right to the integrity of their person. Although the common law will generally not order an apology or specific performance the moral interest of a plaintiff in the common law will be remedied with nominal damages.

Schadenersatzanspruchen Verstorbener regeln

At common law thanks to the moritur doctrine the death of the plaintiff also extinguished all of plaintiff’s rights. This of course led to the perverse result that it would be better to kill than wound! Consequently survival statutes were enacted which would permit the heirs of the decedent to recover for the injuries of their legator. It is problematic to what extent the heirs will be able to recover for the pain and suffering of the decedent.

Servant | Arbeitnehmer

One who works in the pay of another known as a master. The servant will be responsible for any torts they commit but their master will also be responsible. See: master and servant, respondeat superior.

Servant, Public | Beamter

A civil servant or professional employee of the government. They may enjoy a form of immunity for negligent torts committed in the scope of their office. See: immunity, governmental immunity, sovereign immunity.

Slander | Beleidigung (durch schriftliche Äußerung) Mündliche Verleumdung; Beleidigung; Üble Nachrede

Oral defamation. Untrue statements communicated to a third party which tend to bring the reputation of the plaintiff into the opprobrium of the community. While the plaintiff does not need to prove that the slander is false if the defendant proves the slander true that is an absolute defence. Damages for slander (unlike libel) must however be proven. However in four cases damages will be presumed: 1) false intimation of the unchastity of a woman, 2) false accusation of professional incompetence, 3) false statements that the plaintiff suffers from a loathesome disease, c4) alumny, that is false accusation of criminality on the part of the plaintiff.

Sovereign Immunity

See Immunity, Sovereign; Governmental Immunity

Special damages | eigenen Schäden

Special damages are those damages which are not ordinary or usual. They would arise in an action on the case or in an action in equity. While the byzantine pleading of the common law has been replaced by state and federal rules of procedure, plaintiffs must still be specifically plead, otherwise they are waived.
See also: General damages

Standard of Care | Verhaltens / Sorgfaltsstandard

See: Negligence, Due Care, Ordinary Negligence, Mere Negligence, Slight Negligence, Recklessness, Willful, Wanton and Indifferent

Standard of Proof (onus probandi)| Beweismass

The standard of proof in an ordinary trial is by a preponderance of evidence: that is that the fact asserted be more likely than not. In a criminal trial however the standard is higher: there the standard is proof beyond a reasonable doubt.

The standard of care refers to the degree of negligence required to hold the tort-feasor liable. Strict liability cases require no showing of negligence. The general standard of liability in tort is negligence, i.e. a failure to exercise the care that a reasonably prudent person would exercise.

See also: evidence et seq., burden of proof, due-care,

Stare Decisis

The rule that a court must follow the decisions of earlier courts. This rule does not exist de jure in French civil law but is recognized de facto in German law.
Ballard County v. Kentucky County Debt Commision, 290 Ky. 770, 162 S.W.2d 771, 773.

Statute of Limitations | Verjährungsregel

At common law rights do not extinguish: thus to prevent outdated or "stale" lawsuits statutes of limitations were introduced which limit the amount of time after an injury wherein a plaintiff may seek relief. Such statutes can be justified as they prevent loss of evidence and remote claims. Failure to bring lawsuit prior to expiration of the statute of limitations will bar an action completely.

Statutory duty | Gesetzliche Verhaltenspflicht

A legally imposed duty as opposed to a duty at common law. For example physicians may be held statutorily obliged to aid all injured persons due to their specialized skills, competence and character despite the fact that at common law rule is that there is no general duty to aid others.

Strict liability, especially strict products liability | Gefährdungshaftung

A tort-feasor is said to be strictly liable where no inquiry into their mental state is made. That is, the negligence or willfullness of the tort-feasor's act is irrelevant in torts of strict liability such as defective products. In cases of auto accidents strict liability is often referred to as "no-fault" liability since the inquiry does not focus on fault of the tort feasor but remedy to the injured.

Davis v. Gibson Products Co., Tex.Civ.App., 505 S.W.2d 682, 688.
Herbstman v. Eastman Kodak Co., 342 A.2d 181 (N.J.),

See: no-fault liability, absolute liability

Superseding cause

In intervening or superseding cause will be said to break the chain of causation of an earlier necessary cause which is one of the factual causes of the accident. An affirmative defence against a finding of proximate cause.

Hargrove v. Frommeyer & Co., 229 Pa.Super. 298, 323 A.2d 300, 304.

See: joint and several liability, prima facie tort


Survival Statutes | Gesetze, die den Übergang von

See: Wrongful Death

-T-

Thin skull rule | Haftung auch bei unvorhersehbarer Verletzung wegen konstitutionbedingter Überempfindlichkeit

The principle of the common law that particularly fragile victims of torts shall also be fully compensated for their losses, even where the damages arising out of their predisposing condition were not forseeable to the defendant’s particular susceptibility.

Tort | Delikt / unerlaubte Handlung

A tort is a violation of a legal duty resulting in damages to the plaintiff. Delict is a synonymous though rarely used in English – despite the fact that it is the term for tort both in French (délit) and in German (Delikt).

Coleman v. California Yearly Meeting of Friends Church, 27 Cal.App.2d 579, 8I P.2d 469, 470.
James v. Public Finance Corp., 47 C.A.3d 995, 121  Cal.Rptr. 670, 675.
Joseph v. Hustad Corp., 454 P.2d 916, 918.

See delict, prima facie tort

Tort, Prima Facie

See prima facie tort

Tort-feasor | Deliktstäter

S/he who does wrong to another which is recognized as a breach of a legally recognized duty resulting in damages to the plaintiff.

Tort-feasor, joint / concurrent | Mittäter Nebentäter [???]

Concurrent tort-feasor and joint tort-feasor are synonymous. Either term is used to refer to the situation where two or more persons simultaneously injure the same plaintiff or the same plaintiffs. See: joint and several liability, proportional liability

Tort claims act

An act of the government which waives its immunity to torts. These acts also establish the procedures for making such claims. Absent such an act, the government cannot be sued in tort because of sovereign immunity.


Federal Tort Claims Act

The federal statute which authorizes suits in torts against the federal government. An example of a tort claims act.

Toxic torts

Late capitalism features a variety of noxious substances essentially unknown several hundred years ago such as plutonium, PCPs, CFCs, asbestos, defective medicines etc. – the chemical by products of a highly industrialized society. Unfortunately the illness or illnesses caused by these products are generally any of a variety of cancers. Thus proving the causal link between, say, toxic waste dumping, and a particular plaintiff’s injury is difficult. Worse, the same industrial processes that create those toxic substances also permits their widespread diffusion which can lead to mass disasters. As yet society has not developed a comprehensive solution to this problem nor a legal framework in which to implement such solution.

The problematic character of toxic torts lies first in the issue of causation and second in the possibility of multiple victims. In both regards toxic torts raise issues similar to those cases of mass-torts.

Trademark

At common law a trade-mark is used to identify a producer’s goods. As such it serves as a sign of quality for consumers. Thus trademark’s are protected both at common law and under statutes. Trademarks must be distinct such that they are recognisable, not overly general and only are protected with regard to the products that the company makes.

At common law a trademark can be lost through disuse and did not need to be registered. Statutes may or may not have changed this fact depending upon the jurisdiction in question.

Jantzen Knitting Mills v. West Coast Knitting Mills, Cust. & Pat.App., 46 F.2d 182,
Trade-Mark Cases, 100 U.S. 82, 87, 25 L.FA. 550. L.Ed
15 U.S.C.A. § 1127.

Trade Name

A trade name is any designation used by a person to indicate their markets or services Walters v. Building Maintenance Service, Inc., Tex.Civ.App., 291 S.W.2d 377, 382.  To avoid confusion and mark the goods origin but relates more to the business and its goodwill than any of its specific products. Mary Muffet, Inc. v. Smelansky, Mo.App., 158 S.W.2d 168, 170. The trade name is not however a trade mark, either because it is not affixed to a specific product or because it is a word incapable of being appropriated as a trade mark.

Trade-names may, or may not, be exclusive.
15 U.S.C.A. § 1127.


Trespass | Vorsätzlich rechtswidriges eindringen

Wrongful entry onto the land, property, person or right of another.  Trespass may be to land, known as trespass to land, to goods, known as trespass to chattels, or to the person, known as trespass vi et armis. Finally for cases of injury to the person or property an action for trespass on the case, on the specific facts of the case may be had and is sometimes simply called ‘case’. While action on the case is archaic it does still exact.

King v. Citizens Bank of De Kalb, 88 Ga.App. 40, 76 S.E.2d 86, 91.
Waco Cotton Oil Mill of Waco v. Walker, Tex.Civ.App., 103 S.W.2d
1071, 1072.
Mawson v. Vess Beverage Co., Mo.App., 173 S.W.2d 606, 612, 613. 614.

Trespass and battery and trespass vi et armis (vie-et-armes)

With the elimination of the common law writ system and the introduction of code pleading one could argue that these torts have been legally subsumed into battery. In in practice, de facto, they have been.

Among lay persons the understanding is that trespass refers to a wrongful entry onto the land of another – though in fact its legal definition was wider. Significations other than wrongful entry onto land are however fading even in legal discourse. At any rate the term “battery” is used rather than “force and arms” “vi et armis” or “trespass and battery”. Though as we see in trespass on the case there are valid reasons for making distinctions which formerly turned as much on the writ, i.e. procedure, as on substance. Caveat lector.

Trespass to goods

See trespass to chattels

Trespass to land

Trespass is the wrongful entry onto the land of another or causing an object or person to wrongfully enter the land of another or failing to remove an object from the land of another which that person (the defendant) is under a legal duty to remove.

The wrong exists without a showing of damages.

Zimmer v. Stephenson, 66 Wash.2d 477, 403 P.2d 343.

Trespass to the person | Trespass vi et armis (vie et armes) / tresspass force and arms

Trespass vi-et-armis also known as trespass force and arms is an archaic form for a claim of battery. It was concurrent form of action to trespass on the case but possibly only because the common law did not allow pleading in the alternative under the writ system. As code pleading permits pleading in the alternative this tort may have merged into that of battery. The distinction turned on pleading forms which have been abandoned for over a century and yet which subsist at least in theory.

Mawson v. Vess Beverage Co., Mo.App., 173 S.W.2d 606, 613.


Trespass to chattels

Intentional interference with a chattel in possession of another which results in any of the following:
Permanent loss of the chattel, or
Temporary loss of the chattel but for a long period of time, or
Damage to the quality or fitness of the chattel, or
Harm to the owner of the chattel resulting from its deprivation.

Trespass on the case

An action for trespass on the case is in fact a “catch-all” tort, which must be plead and proven as special damages since by definition it does not fit into any of the standard legal forms of action. The plaintiff is allowed to attempt to defend their rights on the facts of the case, and hence the terms “on the case”, “action on the case” or even simply “case”. See Jovitt’s law dictionary. For a more recent reference see:
“Limitation of Tort Actions Under Alabama Law: Distinguishing Between the Two-Year and the Six-Year Statutes of Limitation”
ALABAMA LAW REVIEW VOLUME 49 SPRING 1998
http://www.law.ua.edu/lawreview/webb.htm
Which states:
“Under English common law, trespass on the case was a catch-all remedy for any cause of action for which there was not an existing legal form. [ See John Jay McKelvey, Principles of Common-Law Pleading õ 80 (2d ed. 1917).”


Trespasser

A trespasser is one who commits trespass, that is wrongfully entering upon the land or property of another.
Fitzgerald v. Montgomery County Bd. of Ed., 25 Md.App. 709, 336 A.2d 795, 797.

Regarding liability of landowners for injuries to trespasser see, e.g. Morris v. Atchison, T. & S. F. Ry. Co., 198 Kan. 147, 422 P.2d 920, 927, 928.

-U-

Unavoidable Accident | Unvermeidbares Ereignis

An accident which could not have been prevented by any action of the parties. Strictly speaking then negligence, if any, is causally irrelevant, for the accident would have happened without the defendants act or ommission. Thus there is no sine qua non causation in such cases and logically speaking there should be no liability. Such cases must be strictly distinguished from cases of joint-tortfeasors, where sine qua non causation is found and applied to both tortfeasors.

Sabin v. Sunset Garden Co., 85 P.2d 294, 295 (Oklahoma)

Unity of injury and damage in the same person | Tatbestandprinzip

Principle of German law, with exceptions, that holds that the injured victim must also be s/he who suffers damages from the victim. It is similar to proximate cause in that it permits determination of the extent of liability. In cases where there is an injury but no damages nominal damages will be awarded, as damnum sine injuria.

Unjust enrichment | Ungerechtfertigte Bereicherung

Unjust enrichment occurs where a defendant has wrongfully profited at plaintiff’s expense. There would clearly be a remedy at equity for unjust enrichment. Statutes may also fashion legal remedies. The court regards the unjust enrichment as held in constructive trust by the defendant.

To prove unjust enrichment plaintiff must show a deprivation of their property corresponding to an enrichment, that is an augmentation in the plaintiff’s wealth without however any legal reason for that enrichment.

Tulalip Shores, Inc. v. Mortland, 9 Wash. App. 271, 511 P.2d 1402, 1404.
Hummel v. Hummel, 133 Ohio St. 520, 14 N.E.2d 923, 927.

Unlawfulness | Rechtswidrigkeit

Quality of being illegal as opposed to immoral. Failure to conduct oneself within the bounds of the law. Wrongfulness is not confined to criminal acts and includes torts.
State v. Hailey, 350 Mo. 300, 165 S.W.2d 422, 427.

Unlawfulness, knowledge thereof | Unrechtsbewußtsein

-V-
Versanti in re illicita imputantur omnia quae sequntur ex delicto (Who acts contrary to the law will be held responsable for all consequences which follow therefrom).

The latin maxim which describes the principle of consequential damages: that principle holds that a tort feasor shall be held liable not only for the immediate and obviousl damages resulting from his tortious misconduct but also for all for all consequential damages which follow therefrom. Naturally economic consequential damages are more easily proved in practice than non-economic consequential damages.

Vicarious liability | Arbeitgeberhaftung für Arbeitnehmerdelikte (ohne Arbeitgeberverschulden)

Vicarious liability is that liability which is imputed to a person who should presumably be in position to control the actions of another person where that other person is a tort-feasor. Thus parents are responsible for the torts of their children. Guardians are responsible for the torts of their charges. Employers are responsible for the torts of their employees committed in the scope of the duties of the employee. Products liability is not an example of vicarious liability but rather of strict liability, though the common aspect of capacity to control tortious conduct exists there as well.

See: Respondeat superior. Master and Servant.

-W-

Warranty | Garantie

A promise, whether express or implied, that a good shall be free of defect. Thus cases of products liabilities may be founded on a theory of warranty as well, either as an independent or alternative theory of liability.

The Fred Smartley, Jr., C.C.A.Va., 108 F.2d 603

Implied warranty.

A warranty which the law imputes to the contracting parties based not on the express terms of the contract but on the conduct and circumstances which give rise to implicit assurances of protection and usefulness of the product. Implied warranties may be a foundational or alternative theory to products liability (q.v.) claims

Great Atlantic & Pacific Tea Co. v. Walker Tex.Civ.App., 104 S.W.2d 627, 632.

Willful Wanton and Malicious

Conduct manifesting intent or callous indifference to the lives of others. Sufficient negligence to justify a finding of punitive damages (q.v.). See: recklessness.

Worker’s compensation | US-Gesetze zur Regelung von Arbeitnehmeransprüchen bei Arbeitsunfällen

The industrial revolution led to mechanisation of the work place and a corresponding rise in serious injuries. To correct the worst excesses of laissez faire capitalism, comprehensive schemes of social insurance based on employee and state contributions arose. Under a system of worker’s compensation, the victim of a workplace accident will have a right to a definite fixed compensation. The advantage of such a system is not only in loss spreading but also economy. Fewer costs are spent on lawsuits in such systems. Further they reduce the “roulette” aspects of tort law. While plaintiffs recover lower damages under worker’s compensation than they might have at trial their legal costs may be lower and the standards of proof are in practice lower such that an employee injured at the work place in the scope of his or her duties will nearly certain to recover, even without finding of fault.

See also: Master and Servant, Respondeat Superior, no-fault liability, strict liability, fellow servant rule-

Wrongful

See, wrongfulness. Also see:
Mathes v. Williams, Tex. Civ.App., 134 S.W.2d 853, 858.
County of DuPage v. Kussel, 12 Ill.App.3d 272, 298 N.E.2d 323. 326.

Wrongful death cases | fahrlässige Tötung (possibly: Unerlaubte Tötung)

Since at common law the death of the victim extinguished their legal rights (q.v. moritur doctrine) the statutory action of wrongful death was instituted in order to permit remedies to the heirs of the victim.
See also: survival statutes, statute of limitations

Barragan v. Superior Court of Pima County, 12 Ariz.App. 402, 470 P.2d 722, 724.

Wrongful Birth/Wrongful life

Wrongful birth and wrongful life are both recent actions and thus sometimes confused and indistinct from one another. In both cases parents seeks to recover the costs involved as a result of the birth of an unwanted child. Wrongful life claims arise out of negligent sterilisation (e.g. vasectomy: Sherlock Stillwater Clinic, 260 N.W.2d 169) and negligent abortion and are usually founded on a theory of negligent diagnosis or treatment
(Lane v. Cohen, 201 So.2d 804). The action has been held to include cases where a physician advises a couple that they may have a second childe where the second child suffers from the same hereditary disease as the first (Park v. Chessin, 60 A.D.2d 80).

Wrongful birth | Farhlässig verursachte Gebeurt (eines gesunden Kindes)

Wrongful birth and wrongful life are similar terms but are not at all synonymous. Wrongful birth concerns the case where a healthy child is born due to the negligence of a physician in failing to diagnose a pregnancy within the time the law allows for abortion. While such claims may be permissible the extent of damages will in no way equivalent to the cost of raising a child. The rationale of the courts is that the burden of raising a child is a mixed one which offsets the damages to the plaintiff.

Wrongful life | fahrlässig nicht ermöglichte Abtreibung eines (genetsich kranken) Fötus

Cases of wrongful birth or wrongful life can arise in the following fact patterns:
1) Negligent sterilisation: One of the parents is negligently sterilised, and then has a child.
2) Negligent diagnoses of pregnancy, that is a diagnosis of pregnancy does not occur prior to the legal limit for abortion.
3) Negligence in performing an abortion. In such cases the child may be born crippled or in good health.

It is clear that an injured child injured as a result of a negligent abortion has a right of compensation. Whether the parent or parents of the child also have an independent claim is less clear.

Also controverted is whether the parents have a claim in cases where the abortion does not succeed for the costs of raising the child (so called “wrongful life” claims). Such claims are recognized in California, however the right is the child’s right.  In cases where a sterlisation is negligently performed and a child is born English courts do impute tortious liability to the physician. Damages both in America  and the UK are normally limited to those arising out of birth defects or other abnormal costs  though there is controversy.

French law recognizes the claim of an injured child in cases of a negligent abortion. French law does not however recognise a claim of negligence where the abortion neither succeeds in destroying the fetus nor in fact injures the fetus at all.

Wrongful injury | unrechte / farlässige Verletzung eines rechtlich geschützten Interesses

A synonym for tort which would be understandable by a lay-person. See: tort.

Wrongful behavior | unrechtes / fahrlässiges Verhalten

Imputation of moral sanction for failure to comply with social obligations. Wrongful acts may be excused however due to incapacity (see: capacity) resulting from minority, infirmity, or mental defect. (see: defences)

Wrongfulness | Unrecht, Fahrlässigkeit, Vorwerfbarkeit

Quality of being immoral as opposed to illegal. A wrongful act is not necessarily against the law, though one definition of justice is the congruence of law and morality.

While natural justice holds that all laws must also be moral that does not indicate that all morality is legislated. A thing may be immoral yet not illegal. In an injust state a law may even be immoral.

Wrongfulness can also be defined as conduct which fails to rise to the level of moral (as opposed to legal) responsibility that society demands of adult persons in possession of their faculties. Wrongfullnes is not alone sufficient to constitute a prima facie tort. While a negligent action is wrongful not all wrongful actions cause damages. Wrongfullness can be understood as a synonym for breach of one’s legal duty and thus would correspond to a finding of two of the necessary for elements of a  tort.


NOTES:
  Narducci v. Manhasset Bay Assocs.,  96 N.Y.2d 259; 750 N.E.2d 1085; 727 N.Y.S.2d 37; 2001 N.Y. LEXIS 1108.
  “§ 7 Abs. 1 StVG verpflichtet den Halter zum Ersatz des Schadens, der beim Betrieb des Kraftfahrzeugs angerichtet wird. Nach § 18 Abs. 1 Satz 1 StVG trifft dieselbe Haftung den Führer des Kraftfahrzeugs. Der Führer kann sich allerdings durch den Beweis des Nichtverschuldens nach § 18 Abs. 1 Satz 2 StVG entlasten, während der Halter nur bei einem unabwendbaren Ereignis, das er beweisen muß, von der Haftung frei wird (§ 7 Abs. 2 StVG). Entsteht der Schaden an einem anderen Kraftfahrzeug, findet eine Abwägung unter den Betriebsgefahren der beteiligten Fahrzeuge statt, die zu einer Anrechnung (=Kürzung) auf den Schadensersatzanspruch nach § 17
Satz 2 StVG führen kann.“
Prof. Dr. Helmut Rüßmann
„Gefährdungshaftung“
http://ruessmann.jura.uni-sb.de/rw20/haftung/hiif.htm


  « En outre, la loi du 19 mai 1998 a consacré une responsabilité de plein droit à la charge des fabricants et des fournisseurs de produits défectueux, dont les médicaments défectueux.
La loi du 19 mai 1998 transpose en droit français la directive européenne du 25 juillet 1985 sur la responsabilité du fait des produits défectueux. Son régime juridique s'ajoute à celui dégagé par le droit commun ou d'autres régimes juridiques spécifiques (transfusions sanguines par exemple).

Elle pose le principe d'une responsabilité de plein droit dès lors que sont constatés le défaut du produit et un dommage en résultant, indépendamment d'un contrat ou d'une faute.  … Le défaut de sécurité du produit n'est pas présumé. »

Médicaments et produits dangereux pour la santé
Me DURRIEU-DIEBOLT, Avocat
http://sos-net.eu.org/medical/medic.htm#3-2


force majeure
Definition [French, superior force]
1   superior or insuperable force
2   an event (as war, labor strike, or extreme weather) or effect that cannot be reasonably anticipated or controlled
Lawyers.com
  „Unvorhergesehenes,unvorhersehbares,aussergewöhnliches Ereignis,das mit unabwendbarer Gewalt von aussen hereinbricht.“
Obligationenrecht,Art.487 Abs.1(SR 220):(DF)Keller/Syz,Haftpflichtrecht,1990,S.42

 La "force majeure" est la circonstance exceptionnelle étrangère à la personne de celui qui l'éprouve qui a eu pour résultat a été de l' empêcher d'exécuter les prestations qu'il devait à son créancier.Pour que la force majeure entraîne un tel effet il est nécessaire que le juge constate que l'événement dont le débiteur se prévaut a été d'une intensité telle ,qu'il ne pouvait y résister.

Il s'agit d'un principe général du droit français qui est applicable à la fois au domaine de la responsabilité et ce, qu'elle soit contractuelle , délictuelle ou quasi-délictuelle .On cite le cas de la tempête d'une exceptionnelle intensité ,de celui de l'accident de la circulation produit par le dérèglement du système de signalisation ou du cas encore,où une voiture en a heurté une autre en raison de la présence d'huile répandue sur la chaussée qui n'a pas permis à l'un des conducteurs de maîtriser sa
direction .

Code civil art.607, 1148, 1302, 1348, 1722 .
L.n°85-677 du 5 juillet 1985, art.2. (accidents de la circulation)

http://perso.club-internet.fr/sbraudo/dictionnaire/F.html

  Freelang Dictionnaire Juridique Bilingue (http://www.freelang.com/freelang/dictionnaire/html/allemand_juridique2.htm)
  C.T.T.J.,Université de Moncton,1986;Common Law,Délits civils
  „Strafbare Handlung gegen Leib und Leben,die darin besteht,dass eine Person einen Menschen an Körper oder Gesundheit  schädigt oder gegen diesen eine Tätlichkeit verübt.“ -Eurdicautom
  La violence est l'acte délibéré ou non ,provoquant chez celui qui en est la victime , un trouble physique ou moral comportant des conséquences dommageables pour sa personne ou pour ses biens.

Dans le domaine contractuel ,la violence exercée sur une personne ayant eu pour résultat de l'amener à s'engager ou de l'amener à renoncer à un droit, constitue un vice du consentement.

Quand elle est appliquée aux choses ,lorsqu'elle est faite sans droit ,par exemple la coupe d'un arbre planté sur un fonds voisin,ou la saisie d'un bien faite en vertu d'un jugement qui n'est pas devenu exécutoire ,la violence constitue une "voie de fait".
L'action possessoire destinée à replacer dans la situation dans laquelle ,avant les faits, se trouvait ,le possesseur victime d'un acte de violence , se nomme la " réintégrande"
See : Code civil art. 887, 1111 et s., 2233.
http://perso.club-internet.fr/sbraudo/dictionnaire/cadre.html
  http://www.lawyers.com/lawyers-com/executable/glossary/defpage.asp?SEQNO=145
  Nelson v. Freeland, 1998 N.C. LEXIS 849, *; 349 N.C. 615;
                                            507 S.E.2d 882
 I. Wrongful Life
California recognizes an impaired child's right to recover damages for "wrongful life." ( Turpin v. Sortini (1982) 31 Cal. 3d 220, 182 Cal. Rptr. 337, 643 P.2d 954.) The essence of a wrongful life action is that "if defendants had performed their jobs properly, [plaintiff] .. would not have been born at all." ( Id. at p. 231.) In such a case, an impaired child may   recover special damages for the extraordinary expenses  [*18]  necessary to treat the hereditary ailment from which he or she suffers. ( Id. at p. 239, 182 Cal. Rptr. 337, 643 P.2d   954.) Wrongful life is basically one form of a medical malpractice action. ( Id. at p. 229.)
NATHANIEL GALVEZ, a Minor, etc., Plaintiff and Appellant, v. MICHAEL FRIELDS, Defendant and Respondent.  COURT OF APPEAL OF CALIFORNIA, SECOND APPELLATE DISTRICT, DIVISION FOUR
 88 Cal. App. 4th 1410; 2001 Cal. App. LEXIS 355; 107 Cal. Rptr. 2d 50;
 See, e.g. .A., individually and as parent and next friend to J.A., and N.A., as parent and next friend to J.A., a minor child, Plaintiffs, v. United States of America, Defendant.  SUPREME COURT OF ALASKA  951 P.2d 851;
  For a discsusion of the English jurisprudence (and comparison to the American) see :
http://www.jura.uni-bonn.de/institute/oerecht/verwaltr/lehre/wintersemester2001-2002/rechtsterminologie/text09.pdf
  E.g., ALICE WILLIAMS et al., Appellants, v. UNIVERSITY OF CHICAGO HOSPITALS et al., Appellees.
SUPREME COURT OF ILLINOIS  179 Ill. 2d 80; 688 N.E.2d 130; 1997 Ill. LEXIS 461; 227 Ill. Dec. 793
  La naissance d'un enfant après échec d'une interruption volontaire de grossesse ou stérilisation constitue-t-elle un préjudice ?
Non, sauf circonstances particulières produisant un préjudice particulier distinct de la seule survenance de l'enfant.
La même question a été posée s'agissant de la naissance d'un enfant handicapé : C'est l'hypothèse où la mère n'a pas été informée de l'affection très grave de son enfant à naître, ce qui l'a empêché de solliciter une interruption volontaire de grossesse.
La jurisprudence a longtemps été relativement floue quant à l'indemnisation des parents et de l'enfant à cet égard.
Il est admis que le médecin ne doit pas répondre du préjudice relevant du handicap lui-même si ce handicap n'est pas causé par la faute du médecin. Mais quid dans le cas d'une erreur de diagnostic ? Le médecin doit-il indemniser la famille et/ou l'enfant ?
Le 17 novembre 2000 (Jurisdata n°006884), par un arrêt de principe (arrêt PERRUCHE), la Cour de cassation en assemblée pleinière a retenu la responsabilité, à l'égard d'un enfant atteint d'un handicap, du médecin et du laboratoire dont les fautes contractuelles ont empêché la mère enceinte d'interrompre sa grossesse afin d'éviter la naissance de l'enfant. En l'espèce, le médecin et le laboratoire de biologie médicale avaient commis des fautes à
l'occasion de la recherche d'anticorps de la rubéole chez la mère enceinte. Cette dernière avait décidé de recourir à une IVG en cas d'atteinte rubéolique. Les fautes commises lui avaient laissé croire à tort qu'elle était imunisée contre cette maladie. L'enfant avait développé de graves séquelles consécutives à une atteinte in utéro par la rubéole. La Cour de cassation le 17 novembre 2000 a cassé la décision par laquelle il avait été jugé que les séquelles de l'enfant avaient pour seule cause la rubéole et non les fautes médicales. C'est admettre que le handicap est causé par les fautes retenues et que les victimes peuvent obtenir réparation du préjudice en résultant  sur ce fondement. La nouveauté réside dans l'indemnisation de l'enfant. Auparavant, l'indemnisation des parents (préjudice moral et troubles dans les conditions d'existence) était déjà acquise. En l'espèce, la Cour de cassation a adopté une notion large du lien de causalité (tout ce qui n'a pas empêché le handicap y a contribué) pour indemniser l'enfant. »
La réparation des préjudices spécifiques, Me. Durrieu-Diebolt,
http://sos-net.eu.org/medical/

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