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Full-Text Articles in Law
西方对待过失侵权法的态度：一项比较性的批判研究 (Western Attitudes Towards Negligence Law: A Comparative Critique), Mauro Bussani
西方对待过失侵权法的态度：一项比较性的批判研究 (Western Attitudes Towards Negligence Law: A Comparative Critique), Mauro Bussani
Mauro Bussani
Black-letter tort law world is in motion. The United States is re-stating its rules of liability for physical and emotional harm, European scholars have been preparing different drafts of tort law ‘principles’ in view of a European codification, China is on the eve of a comprehensive reform of its tort liability rules, and in the middle of a lively debate on which model better fits the Chinese society’s legal needs. To modestly contribute to the latter debate, the paper addresses some methodological attitudes as against negligence liability that are widespread in the Western legal culture, and, nevertheless, are worth being …
Orient Express Law, Mauro Bussani
Orient Express Law, Mauro Bussani
Mauro Bussani
For comparativists, the ‘Europeanization’ of tort law raises a plethora of questions with no clear right or wrong answer. Is European tort law going to be molded by a common law and civil law convergence? Is there an Americanization of European tort law going on? Should comparative law be forward-looking and trying to build European tort law on new bricks, or should it be backward looking, struggling to find evidence of a common past to be restored? While it is beyond the scope of the contribution to offer a definite answer to all these questions, the paper aims to clarify …
European Tort Law – A Way Forward, Mauro Bussani
European Tort Law – A Way Forward, Mauro Bussani
Mauro Bussani
In the last years, there have been growing efforts of building a common European tort law. Leaving aside any positive or negative bias vis-à-vis the reasons underpinning these efforts, the paper aims to highlights the overall implications of reframing this field of law, implications that are often forgotten, or undernoted in the debate about the harmonization of European laws of tort. In particular, the paper points out the problems that any integrative enterprise focusing on this field may face, and sketches the possible outcomes that such enterprises are likely to produce in both the short and the long run.
Intention Et Lien De Causalité Dans Le Droit Comparé De La Responsabilité Civile (La Fable Très Peu Convenue De La Malice Qui Accroche), Mauro Bussani
Intention Et Lien De Causalité Dans Le Droit Comparé De La Responsabilité Civile (La Fable Très Peu Convenue De La Malice Qui Accroche), Mauro Bussani
Mauro Bussani
The goal of the essay is to discuss the role that a person’s malice may play in Western tort laws. To this purpose, the paper examines how the finding of the defendant’s malice may: (i) make the victim’s or a third party’s contribution to the injury appear negligible; (ii) blur the distinction between acts and omissions; (iii) relax the notions of proximity and remoteness; and (iv) extend the range of consequences for which the defendant can be held liable.
Liability For Pure Financial Loss In Europe: An Economic Restatement, Mauro Bussani, Vernon V. Palmer, Francesco Parisi
Liability For Pure Financial Loss In Europe: An Economic Restatement, Mauro Bussani, Vernon V. Palmer, Francesco Parisi
Mauro Bussani
As generally understood in the law and economics literature, the economic loss rule states that a plaintiff cannot recover damages for a pure financial loss. The comparative study of the recoverability in tort of pure economic losses, however, reveals that the recognition and significance attributed to the economic loss rule and to the notion of "economic loss" varies considerably across Western legal systems. This paper therefore revisits recent findings of comparative law about the recoverability of pure economic losses, and demonstrates that legal notions of pure economic loss encompass several types of situations, with little or no correspondence with the …
Colpa E Responsabilità Della P.A. Nella Lesione Di Interessi Legittimi, Mauro Bussani
Colpa E Responsabilità Della P.A. Nella Lesione Di Interessi Legittimi, Mauro Bussani
Mauro Bussani
This paper discusses recent Italian developments about the liability of public authorities for their unlawful acts, and set these ‘new’ rules against the comparative framework of tort liability rules which apply to public authorities in Western (European and United States) jurisdictions.
La Responsabilità Della Pubblica Amministrazione In Diritto Comparato, Mauro Bussani
La Responsabilità Della Pubblica Amministrazione In Diritto Comparato, Mauro Bussani
Mauro Bussani
The paper analyzes and compares the liability rules which apply to public authorities’ wrongful acts under French, German, Italian, and Anglo-American law. More in particular, the paper examines the acts that, in the concerned jurisdictions, may trigger the liability of public authorities, the tort law remedies that may be sought against them, and the courts that are competent to hear such claims.
Responsabilité Des Sujets Atteints De Troubles Mentaux En Italie Et En Common Law, Mauro Bussani
Responsabilité Des Sujets Atteints De Troubles Mentaux En Italie Et En Common Law, Mauro Bussani
Mauro Bussani
The aim of this paper is to challenge the traditional principle of Western negligence law according to which, whatever a person’s characteristics are, his/her behavior should be judged against the standard of care expected from the so-called ‘reasonable person’. In particular, the paper focuses on a special category of subjects who are ‘weaker’ than the average because suffering from a psychological disability. Through the comparative analysis of Italian, English, and American tort law rules involving these persons, the paper shows how courts are acutely aware of the need to introduce some degree of flexibility into the median fault parameter.
Problemi Dell'illecito: Superiorità Soggettive E Giudizio Sulla Colpa, Mauro Bussani
Problemi Dell'illecito: Superiorità Soggettive E Giudizio Sulla Colpa, Mauro Bussani
Mauro Bussani
A long-standing tenet of Western negligence law holds that the standard against which the defendant’s behavior should be evaluated is that of a ‘person without qualities’, a fictitious individual allegedly endowed with average knowledge, conventional musculature, ordinary reactions, commonplace skills, and normal intelligence and memory. This paper is based on a comparative analysis of Italian, French, and Anglo-American rules. Its aim is to challenge the ‘person without qualities’ standard, and to demonstrate its empirical, theoretical, and policy flaws when the defendant is a ‘super(wo)man’, that is, someone who, differently from the average (wo)man, is endowed with the physical/intellectual capabilities, the …
Faiblesse Oblige, Mauro Bussani
Faiblesse Oblige, Mauro Bussani
Mauro Bussani
A general principle of Western negligence law is that, whatever a person’s characteristics, (dis)abilities, strengths and weaknesses, his/her behavior should be judged against the standard of care expected from the ‘reasonable person’. The latter is a person allegedly endowed with average knowledge, conventional musculature, ordinary reactions, commonplace skills, and normal intelligence and memory – a ‘person without quality’. The aim of this paper is to offer comparative evidence to the fact that the ‘person without quality’ rule (ought not be, and) actually is not imposed upon below-average defendants – that is, persons who are weaker than the ‘reasonable person’, like …