Monday, October 21, 2013

ABSOLUTE LIABILITY / STRICT LIABILITY PPC and Tort paper 5 and 6 for LLB part I Punjab Universty

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.


No comments:

Post a Comment