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.
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.
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 ???
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.
Damages
Damages
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
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
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.
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.
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.
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.
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).
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.
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
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.
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,
presumedDamages
which do not require proof as they are presumed as a matter of law to result
naturally and necessarily from a tortious actDamages,
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.
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.
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.
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
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.
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.
Public
figures, including officeholders and candidates, have to show that the
defamation was made with malicious intent and was not just fair comment.
No comments:
Post a Comment