Set the Language

We weren't able to detect the audio language on your flashcards. Please select the correct language below.

Front

Back

Related Flashcards

Flashcards
»
Comparative Private Law

Comparative Private Law

by jacksonabroad9, Dec. 2010

Subjects: law

Favorite

Add to folder

Flag

Shuffle
Toggle On

Toggle Off
Alphabetize
Toggle On

Toggle Off
Front First
Toggle On

Toggle Off
Both Sides
Toggle On

Toggle Off
Read
Toggle On

Toggle Off

Reading...

Front

Card Range To Study

through

Play button

Progress

1/215

Click to flip

Use LEFT and RIGHT arrow keys to navigate between flashcards;

Use UP and DOWN arrow keys to flip the card;

H to show hint;

A reads text to speech;

215 Cards in this Set

Front
Back

	Wild Animals French Law 715	- Fr. Civil Code art. 715: The right to hunt/fish is regulated by particular statutes - Code regards hunting as acquisition of game  right to hunt = attribute of the right to property which belongs in principle to the one who owns the land - BUT acquisition of game is independent of property right to the land & right to hunt there - Once you catch the animal, it’s yours – even if you are trespassing - If hunter is trespassing, may be liable in criminal action/owe civil damages for trespass
	Wild Animals German Law 958 & 960	- §958 German Civil Code: one who takes unowned object becomes owner unless acquisition is prohibited by statute or when taking possession injures rights of acquisition of another - §960 German Civil Code: wild animals are ownerless as long as they remain free; a wild animal that recovers its freedom becomes ownerless unless the owner is in immediate pursuit; tame animal becomes ownerless when gives up habit of returning - But, Federal hunting law limits this – can create private hunting preserve - Animal caught in viol. of another’s hunting rights belongs to Owner of rights NOT Hunter
	What if you catch the animal on someone else’s land (trespassing)?	Roman Law: Hunter wins Eng & U.S.: Owner wins France: Hunter wins Germany: Owner/ Animal still wild! (because Owner never took possession)
	Found Objects Anglo-American	Anglo-American Law Armory v. Delamire (Eng.) - Chimney sweep finds jewel; gives it to jeweler for appraisal; jeweler keeps it - Ct: finder has rights against all the world except against the rightful owner (Roman rule)
	Found Objects German Law 965,,967, 973	German Law - §965: duty of finder to give notice to loser-owner; if finder doesn’t know this person, must give notice to Bureau (§967 – finder must deliver object to Bureau) - §973: when 6 months have passed since notice of finding given to Bureau, finder acquires ownership (previous rights to object are extinquished) - Creates incentive to turn things in to Bureau - P1 = O2 ; O1 vs. O2  O2
	Treasure	Roman Law - On private land: ½ goes to Finder; ½ goes to Owner - On public land: ½ goes to Finder; ½ goes to Empire (temporary rule – 100% to empire) - BUT the treasure must be found by chance (Finder can’t have been searching for it) English Law - Treasure always goes to the Crown U.S. Law - Treasure always goes to the Owner of the land French Law - ½ goes to Finder; ½ goes to Owner – but must be found by chance German Law - ½ goes to Finder; ½ to Owner – may be found by chance or search - Rule encourages people to find treasure – economic use of lost treasure
	Adverse Possession English Law	- Didn’t care re: good faith/bad faith due to legal fiction of the “lost deed” - Rule based on fiction that after 30 years, deed presumed to be lost - Tacking allowed (if Squatter1 is dispossessed, S2 can add S1’s period of possession to his own – total time runs against true owner from time adverse possession began
	Adverse Possession American	- 3 different approaches depending on the state: 1. Protect good faith possessors only 2. Protect bad faith possessors only - Why? If there is a parcel of land & you build a house there & live there for 30 years, but owner never found out & kicked you off, maybe owner doesn’t need/use land 3. Good faith/bad faith doesn’t matter - Can’t adverse possess against the state!
	Adverse Possession French Law 2220, 2235, 2262	- Art. 2220: for prescription to occur, must be continuous, uninterrupted & peaceable possession which is public & unequivocal and under color of right - Art. 2235: allows tacking - Art. 2262: 30 year limit - Good faith/ bad faith DOESN’T MATTER!!
	Adverse Possession German Law 937, 943, and 900	- §937 re: moveable objects (chattels)  10 years + good faith - §943: tacking allowed - No adverse possession re: land  more efficient to use land registry - §900 re: land register= A person who is registered as the owner of a plot of land in the Land Register without having acquired ownership acquires ownership if the registration has existed for thirty years and he has had the plot of land in proprietary possession in this period. The thirty-year period is calculated in the same way as the period for acquiring a movable thing by prescription. The running of the period is suspended as long as an objection to the accuracy of the registration is entered in the Land Register.
	Legal Remedies Against Non-Possers American Law	- Writ re: land  “ejectment’ - In order to win, no need to prove title/possession - Writ re: chattels  “trover” (Eng.); “replevin” (US) - Until American Revolution, there was no action to get your thing back – could bring an action for conversion or get value of the thing taken (trespass) - Eng. fudged trover  if you found my thing, I bring an action for trover - What if thing taken by force? The way you ‘found’ the thing was by taking it! - Owner would say he lost his horse & now he wants it back - US fudged replevin  landlord action to seize goods if tenant didn’t pay rent - 19th Century  policy decision made to protect possession & title
	Legal Remedies Against Non-Possers Roman Law	- Action to protect ownership  “vindicatio” - Action to protect possession  “possessory interdict” (like an injunction; re: movables/land)
	Legal Remedies Against Non-Possers French Law 2282 and 2283	- Art. 2282  possession is protected - Art. 2283  action available to those who “possess or peacefully detain property”
	Legal Remedies Against Non-Possers German Law §861	- §861  if possessor loses possession by unlawful force of another, he can claim restoration from person whose possession is defective by comparison to his own
	Rights to Natural Resources U.S. Law	U.S. Law - Owner owns everything above & below the land (exception re: airplanes – “useable space” concept) US is only country that believes the owner of the land owns the minerals in it
	Rights to Natural Resources English Law	- All mineral deposits belong to the Queen - State grants licenses to search for & extract minerals - Land owner is entitled to compensation for whatever ancillary rights are necessary
	Rights to Natural Resources French Law	- All mineral deposits belong to the State - Can get permit to survey on another’s land, but must pay surface owner an annual sum in re: interference with owner’s use of the land - Surveyor is liable to owner for any damage caused to the property (fault/no-fault)
	Rights to Natural Resources German	- All mineral deposits belong to the State (land owner owns land w/o minerals) - Can get permit to survey/mine on another’s land (permit holder can compel owner to allow him to mine, but owner is then entitled to damages)
	Water Rights Anglo-American Old Rule	Prior Use Rule (OLD RULE) - If you appropriate the water 1st, its yours - Rule disappears in Eng & US Carey v. Daniels (US) - 2nd mill affects grade of land, so water flows back & makes 1st mill inoperable - “occupancy” – how you make a wild animal yours – possession - Each is entitled to use of stream so far as it is reasonable - 1st to erect dam for water mill has right to maintain it against those above or below  prior occupancy gives prior title to such use - Compares to highway – while A is excersing his right to be on highway, B cant occupy same space at same time Blackstone: - “if a stream be unoccupied, I may erect a mill thereon, and detain the water; yet not so as to injure my neighbor’s prior mill, or his meadow: for he hath by the first occupancy acquired a property in the current”
	Water Rights U.S. Controling Rule	- Everyone has equal right to water - No property in the water itself; right to use - Must be “reasonable use”  test: whether it is to the injury of the other proprietors or not R 2nd Torts - §850A  “Reasonable Use Reasonable depends upon considerations of the of the interest of the riparian proprietor making the use, of any riparian proprietor harmed by it, and of society as a whole. Factors a)purpose of the use b)economic value of use c)societal value of the use d)extent and amount of harm e)practicality of avoiding the harm d)protection of existing water uses, land, investments, and enterprises e)justice of of requiring user who causes the harm to bear the loss.
	Water Rights English Law	Water Resources Law (1991) Largely Replaced Mason v. Hill -Person abstracts water or obstructs it flow must have a license UNLESS they take less than 20 meters a day for domestic or agricultural purposes -License Specifies quantity of water and purposes for which it may be used -Anyone with land touching river can apply -Cant issue license which derogates protected right to take 20 meters a day. If it derogates from protected right, liable for damages in breach of duty -Can modify or revoke license, but it does so has to pay compensation IF -License holder incurred expenditures in carrying out work OR -otherwise sustained loss or damage which is directly atributable to revocation or variation.
	Water Rights French Law 644 and 645	- Art. 644: allows owner of land along river to use water for irrigation; if river crosses your land, may use it while it’s there, but must return it to ordinary course when leaves property - Art. 645: if dispute re: water, Cts must reconcile interest in agriculture w/ ownership - (like US) French Cts have refused to allow latecomers to build dams which impaired flow of water to prior user’s mill  prior user has right to have water flow according to “natural/ordinary course” Case of 15 Feb. 1980 - Use of water = quasi-possession which can give rise to possessory action by person w/ land along the river who uses water w/in limits of Art 644 - Ct: using pipe on river bed that would operate whatever the height of the water, Δ not able to restore previous level to fields of downstream owner  Δ diminished volume of water available to π w/o lawful means Case of 14 Oct. 1980 - Downstream owners (π) brought suit when laundry was started upstream which diverted their water - Ct: π wins – establishment of industrial enterprise was not dominant estate in re: to properties along the river having right to take water from it
	Water Rights German law	German Law - Permit entitles person to use certain amt of water for certain purpose - Permit not necessary if water can be used w/o essential reduction of the flow - If granting the permit adversely affects another’s right to the water, the permit can still be granted on grounds of the general welfare, but the person who loses his right to the water must be compensated - Germ. State law: person benefitted must compensate person who lost the right - Permit entitles permit holder ‘s right to use water to be protected in same way as property right  so a person who interferes w/ that right can be ordered to desist/liable in tort
	Nuisance Activities Intended to Bother Another Roman, US, France, Germ	Roman, US, France, Germ  Δ liable even for activity that would not normally be actionable if he engaged in it for sole purpose of bothering someone - US: nuisance to build fence w/ no other purpose than to shut out light/air from neighbor’s window (Δ liable) - Cf: no nuisance where Δ moved shed to edge of property, blocking neighbor’s light/air; although Δ acted out of malice, Ct found moving the shed served some useful purpose to Δ - France: jurists refer to this as “abuse of right”; Case of the false chimney; Case of spiked towers to prevent π from taking off in hot air balloon  Δ liable - Germany: Civ Code §226: use of a right is not permitted when it can only have the purpose of causing harm to another
	Nuisance Activities Intended to Bother Another English Law	Eng Law  confusion /unsettled Christie v. Davey - Ct enjoined Δ from interrupting π’s music lessons by banging on wall b/w apts Silver Fox - Δ liable for firing guns near π’s land during fox breeding season in order to harm the foxes, which are nervous in that season Pickles - Δ not liable even though he deliberately drained his land to diminish π’s water supply so that π would be forced to buy Δ’s land
	Nuisance Remedies English Law	English Law Miller v. Jackson - Cricket field is nuisance to surrounding homes  CLOSE FIELD - Ct: must strike balance b/w rights of individual to enjoy house & garden w/o threat and rights of public to engage in lawful pastimes - Here: real risk of serious injury  damages not adequate form of relief - ALWAYS can get injunction - Consequences: inhibits industry & allows hold outs (make factory pay $$ to avoid injunction) - Cts don’t really follow rule in Eng; Ct will fool around with “reasonable”: if valuable activity + no way to prevent harm = reasonable use (re: hold out of parcels)
	Nuisance Remedies U.S. Law	Boomer - Cement factory produces smoke, dirt & vibration  nuisance has been found, but Ct denies claim for injunction - Ct: factory must pay damages, if not, then injunction - Ct: damages solve π’s problem of decreased property value & allow factory to continue working - CAN’T always get injunction – injunction conditional on paying damages
	Nuisance Remedies French Law	Flourine gas case - Ct: factory couldn’t take any better measures to stop emissions; - Denies request for injunction; grants damages - CAN’T always get injunction
	Nuisance Remedies German Law 906	Civil Code§906: - If owner of land suffers interference of gas, odors, smoke, noise, vibrations, he may require compensation from person using the other land when the interference prevents a use of his own land or its product that is normal for the area to an unreasonable degree NB: Gordley says US, FRA, GER are right
	Nuisance Character of Neighborhood English Law	English Law St Helens Smelting v. Tipping - Nuisance depends on circ. of place where the thing complained of actually occurs –ex: man who lives in town needs to deal with normal consequences of living in a town - Here, π’s estate 1 mile from smelting works (π there 1st) BUT whole neighborhood where factory is - devoted to smelting/manufacturing - Ct: area devoted to manufacturing – so factory may continue w/o impunity, even though result is destruction/diminution of π’s estate - Δ wins? p. 178
	Nuisance Character of Neighborhood U.S. Law	Bove .v Donner-Hanna Coke Corp. - Π purchased 2 lots in Buffalo; 2 yrs later, Δ built coke oven across street - Ct: one who lives in large center of population can’t expect quiet of country - Π bought property w/ full knowledge this region was especially adapted for industrial rather than residential purposes – voluntarily moved here aware of fact that air would be contaminated by odors/gas - Δ wins (Ct says not a nuisance)
	Nuisance Character of Neighborhood French Law	Case of 3 Nov. 1977 - House/garden next to textile mill - Ct will still make Δ pay damages if area is mixed use (houses & textile mills in area), but pays less damages
	Nuisance Character of Neighborhood German Law	Case of 10 March 1937 - Issue: was Δ w/in rights of §906 in discharging gas/dust from his land - Δ wins – even though harmed π, Δ’s activity was normal use of land in re: location of properties - Factories & farms (mixed use)  Δ pays less damages
	Nuisance Priority in Time English Law	English Law Miller v. Jackson - Cricket field has been there 40 years; π build house on edge of field - Prior use for x amount of time ≠ prescriptive right - No Δ to say π brought the trouble on himself by building so close to field - Ct seems reluctant to apply this rule, but claims to be bound by authority - Π wins
	Nuisance Priority in Time American Law	Spur Industries v. Del E Webb (Exception) - Π was developer who bought land in agricultural area in AZ; developed subdivision; city springs up & now the pig lot is a nuisance - Ct: developer must pay for feed lot to move - Rule is limited to case where developer has, w/ foreseeability, brought into a previously agricultural/industrial area the population which makes granting injunction necessary & for which business has no adequate relief
	Priority in Time French Law	Case of 20 Feb. 1968 - Π built house on land next to factory; complained of noise/vibrations - Ct: priority in factory’s construction in re: adjoining house does not create servitude to detriment of neighboring property - Π wins
	Priority in Time German Law	- Rule: what matters is the current use & not the historical one – progress would be hindered if preemption was the rule - Π wins
	Height-English Law	Hunter v. Canary Wharf - Canary Wharf tower blocks TV reception - Ct draws analogy to loss of view – not actionable - Δ wins
	Height-US Law Fountainbleau v. Forty-Five Twenty-Five Inc. - Tall hotel shades beach of other hotel ; casuses huge loss to other hotel, tall hotel gets great advantage	- Ct: no legal right to free flow of light & air – where structure serves a useful & beneficial purpose, no cause of action – even if it causes injury to another by cutting off light/air/view – regardless if structure erected partly for spite! - Δ wins
	Height-French Law Case of 3 Nov. 1977 - π’s light blocked by Δ’s mill chimney; now π must build higher	- Ct: Arts 544 & 1382 – right of owner to enjoy his property in most absolute manner…is limited by obligation not to cause any harm to another that goes beyond normal inconveniences of having neighbors - π wins - Δ caused harm that exceeded norm. inconven. of having neighbors
	Ugliness U.S. Law	Mathewson v. Primeau - Rule: unsightly/ugly stuff ≠ ordinarily a nuisance/grounds for injunction Foley v. Harris - Ct: discomfort & annoyance must be significant & of a kind that would be suffered by a normal person in the community - Π wins NB: in extreme case, yes – maybe bec. Δ changing land’s use to junkyard
	Ugliness French Law Case of 27 Nov. 1979 - Π view diminished/ less light due to Δ’s building + blind wall of “great height & unaesthetic character”	- Ct: interferences exceeded normal ones of having neighbors (π wins) - π generally wins - Judges can determine what is unaesthetic - Ct willing to intervene
	Ugliness German Law Case of 15 Nov. 1974 - Π complained that Δ built ugly iron wall in front of his garage	- Ct: no similar interference from operations conducted on other land w/ in meaning of §906 (§906 doesn’t apply to intangible/aesthetic interferences) - BUT ct contemplates exception where interference is particularly offensive - Rule: π generally loses but may win if really bad
	Offensive Conduct-English Law Laws v. Florinplace - Δ sex shop w/ large sign in area w/ homes, restaurants, shops	- Ct: triable issue that sex shop’s nature so evident that it becomes nuisance - will bring in wrong type of people & harm children; Ct said due to nature of shop/reputation, Δ couldn’t camouflage it - Maybe Δ would win if not evident what’s going on
	Offensive Conduct U.S. Law Mitchell v. Bearden - Δ wanted to build funeral home in exclusive residential area; π wins	- Ct: continuous suggestion of death & dead bodies tends to destroy comfort & repose of home owners in area - Critical factor: effect on property values due to location of funeral home - Ct also considers predominance of commercial/residential property in area See Also: Tedescki v. Berger - Δ-brothel; π-neighbor complains  π wins - brothel = nuisance per se
	Offensive Conduct French Law	Case of 3 Dec. 1964 - Usually inconvenience is due to something coming from Δ’s property onto π’s property (dust, odors, smoke, vibrations) - Cts allow action when annoyance/harm is felt on π’s property, but results merely from view of what is going on at neighbor’s property - Π wins
	Offensive Conduct German Law	- Π generally does NOT win, but maybe if evident (Brothel) - Note that Code says “emissions”! But if you push too hard, Ct may step in NB: must show you (π) are a neighbor & activity is harming neighborhood  must show your property rights are affected
	Doctrine of Necessity Englsih Law	- Rule: in case of great & imminent danger, in order to preserve life, law permits encroachment on private property - Dicta: enough in time of emergency – so there is necessity doctrine & need danger - Held: in case of necessity, for saving lives, lawful for Δ to throw the stuff overboard - Ex: pulling down a house in time of fire to stop fire from spreading Rogers - Assuming defense of necessity has been made, must Δ make compensation/restitution? - No damages in tort but Δ is liable to make restitution or pay equivalent compensation - Results in considerably less damages to bring claim under restitution (quasi-K) than tort
	Doctrine of Necessity U.S. Law	Ploof v. Putnam - Ship tried to dock; pier owner cuts boat loose in storm - Established necessity doctrine in US - Ct provides # of examples of necessity doctrine (p.218) Vincent v. Lake Erie Transp. - Must pay for damage caused to dock Grant v. Allen - Water collecting on π’s lot; π asked to go on Δ’s lot to prevent flooding; Δ refused - Ct: not necessity because no danger - Cts require DANGER – cant just say my need >> your loss - But, where public way is blocked & pedestrian walked on π’s property to get around, Ct said OK – so questions whether danger element required in US (Ct’s ex. In Ploof) - Cts require DANGER – cant just say my need >> your loss - But, where public way is blocked & pedestrian walked on π’s property to get around, Ct said OK – so questions whether danger element required in US (Ct’s ex. In Ploof)
	Doctrine of Necessity German Law 904	iv. Code §904:The owner of a thing is not entitled to prohibit the influence of another person on the thing if the influence is necessary to ward off a present danger and the imminent damage is disproportionately great in relation to the damage suffered by the owner as a result of the influence. The owner may require compensation for the damage incurred by him. - Can’t prohibit someone else from using your thing when such conduct is necessary to avoid a present danger, & the damage threatened by it is unreasonably large compared to the damage arising to the owner. Owner can require compensation for damage that occurs.
	Necessity and Intent U.S. Law	- Intent need not be to cause harm – merely intent to put yourself somewhere - If intent, you pay
	Necessity and Intent German Law	- Intent = certain result that I want to bring about (ex: Kaiser & chauffer - take possibility of result into acct) - Traffic accident (p.232) – no recovery – would negate law of negligence - Re: intent: if no intent, no liability - #1 – A is captain of vessel (p.232)  doctrine of necessity – you hurt guy’s cable for your benefit, so owe compensation (has taken cable into acct) - #2 – driving on road, see truck coming in your lane, pull into left lane to avoid 1st truck & hit 2nd car in lane  no contemplation of hitting car to avoid truck, so NO compensation to π - Concept of “CONDITIONAL INTENT” – “to have intentionally interfered with another’s rights, a party need not have done so with a direct intention; he need not have the purpose of interfering with these rights or legal interests. Rather it is enough if he recognised the possibility of such an interference & proceeds to act despite this knowledge, taking into account that action may occur, although he may even hope that it does not” Kotz & Wagner
	French Structure of Tort Law 1382, 1383, 1384, 1385	1382-Every action of man whatsoever which occasions injury to another, binds him through whose fault it happened to reparation thereof. 1383-Every one is responsible for the damage of which he is the cause, not only by his own act, but also by his negligence or by his imprudence. 1384-A person is responsible not only for the injury which is caused by his own act, but also for that which is caused by the act of persons for whom he is bound to answer, or by things which he has had. under his care. The father, and the mother after the decease of her husband, are responsible for the injury caused by their children being minors and residing with them masters and trustees, for the injury caused by their servants and managers in the functions in which they have employed them; Tutors and artisans for the injury caused by their pupils and apprentices during the period in which they are under their superintendence. The responsibility above mentioned is incurred unless the father and mother, tutors and artisans, can prove that they were not able to prevent the act which gives rise to such responsibility. 1385-The owner of an animal, or he who makes use of it while it is in his employment, is responsible for the injury which the animal has occasioned, whether the animal were in his custody, or whether it had strayed or escaped. The proprietor of a building is responsible for the injury caused by its fall, when it has happened in consequence of the want of necessary repairs or from defect in its construction. - Patis civil: where there is concurrence b/w crime & tort in French system, the injured party can sue with the prosecutor
	German Structue of Tort Law - §823(1)	- A person who intentionally or negligently unlawfully injures the life, body, health, freedom, property, or similar right of another is bound to compensate him for any damages that thereby occurs. (Cts added privacy as “similar right”) - “unlawfully” (e.g. I can intentionally hurt you, but if it’s in self defense, its OK) - This point is not explicit in the French code but the outcome would be the same. - German mind wanted less liability; more certainty - German code is also more specific in the sorts of harm one could recover from: injury to life, body, health, freedom, property or similar right - Drafters also provided in §823(2) that in the case of intentional misconduct, the Π could recover for "harm" he suffered even if the rights described the 823(1) had not been violated
	German Structure of Tort Law- §826	- A person who intentionally causes harm to another in a manner contrary to good morals is bound to compensate him for the harm
	Traditional Common Law Structure of Tort	- Common law didn’t ask about intent/negligence until 19th century - Writs  specific actions - Battery – intentionally make unauthorized contact w/ π - Assault – imminent danger of battery - Trespass to land – move onto someone’s land (even if you don’t know it belongs to him) - Trespass to chattels – Δ does something with π’s property - Defamation – factual statement about you which, if believed, would harm reputation - If oral defamation  slander - If written defamation  libel
	General Insult Traditional English Law	- Would bring it under assault or battery - Anger or hostility not essential to liability - The interest that was protected by the law of assault and battery is not merely that of freedom from bodily harm, but also that of freedom from such forms of insult as may be due to interference with his person - In respect of personal dignity, therefore, a man may recover substantial damages for a battery that has done him no physical harm whatever.
	General Insult Traditional U.S. Law Leichtman v. WLW Jacor Communications (1994) - π, an anti-smoking advocate, appeared on radio show to discuss the evils of smoking - Radio host lit a cigar and blew the smoke in π’s fact for the purpose of causing physical discomfort, humiliation and distress.	- Ct: Δ’s act constituted battery - Contact req satisfied b/c tobacco smoke has the physical properties capable of making contact
	General Insult Modern English Law Wilkinson v. Downton (1897) - Case where Δ intentionally inflicted emotional distress on π by calling her and telling her husband was in a terrible accident when he wasn’t - Was not negligence or assault really	- Behavior was willful and calculated and did produce a harmful effect, so the judge found a new principle of liability. - Rule: if intending physical injury, Δ liable  Ct fudging here – did girls really intend physical harm?? Probably not, but they are still liable!
	General Insult Modern English Law Protection from Harrasment Act of 1997	- A person must not pursue a course of conduct; - Which amount to harassment of another, and - Which he knows/ought to know amounts to harassment of other - For the purposes of this section, the person whose course of conduct is in question ought to know that it amounts to harassment of another if a reasonable person in possession of the same info would think it was harassment - (4) putting ppl in fear of violence - A person whose course of conduct causes another to fear, on at least 2 occasions, that violence will be used against him is guilty of an offence if he knows or ought to know that his course of conduct will cause the other so to fear on each of those occasions - Reasonable person standard .
	General Insult Modern English Law Exceptions from PHA	- That it was pursued for the purpose of preventing or detecting crime, - That it was pursued under any enactment or rule of law or to comply with any condition or req imposed by any person under any enactment, or - That in the particular circumstances the pursuit of the course of conduct was reasonable.
	Modern U.S. Law on Emotional Distruess	(1) One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm. (2) Where such conduct is directed at a third person, the actor is subject to liability if he intentionally or recklessly causes severe emotional distress (a) to a member of such person's immediate family who is present at the time, whether or not such distress results in bodily harm, or (b) to any other person who is present at the time, if such distress results in bodily harm.
	French Law Defamation and Insuly	π is deemed to have suffered “harm” for which he can recover under arts. 1382-83 of the Civil Code when the Δ commits the crimes of defamation and insult - Rule: if “dommage” then OK to have an action! - Defamation: - D has told a falsehood about the victim - Includes “any allegation of imputation of the fact that harms the honor or respect of the person or body to whom the fact is imputed.” - Insult: - “Any outrageous expression, words of contempt, or invective that does not include the imputation of fact.” - The provision applies to insults that are made “in public.” - Art. R-612-2 of the Criminal Code prohibits “non-public insult of a person” without defining the word “insult” any further.
	French Law-Insult Case of Regine Zylberberg: - Δ was convicted of insult and ordered to pay damages to Regine Zylberberg who was a civil party to a criminal action - Δ had printed an article with a photo of the complainant in the company of a 3rd party with the caption: “snobbism and hysteria. Regine Z…”	- Issue: was “hysteria” an insult? Court said everything taken together, the word ‘hysteria’ tends to represent Z as part of a corrupt circle of snobs and hysterics whose activities are condemned in the article. - Hysteria in that context indicated a penchant to debauch rather than having any medical significance NB: Examples of outrageous expression taken from case law: - Bandit, riffraff, traitor, pirate, little demagogue , filth, mountain of dung, dirty sewer stream, tart kosher pork butcher, buzzard, paranoid. - But it is not an insult to suggest that someone submit his resignation
	German Law Insult, Wrongful Dissemination, and Defamation	Insult: - A statement is an insult if it affects a person’s “good reputation” - Need not be a statement of fact Wrongful dissemination: - Must be a statement of fact which ‘brings another into contempt or lowers him in public opinion’ - The statement must be one which is “not demonstrably true” Defamation - Must be a statement of fact which ‘brings another into contempt or lowers him in public opinion’ - The statement must be “demonstrably untrue’ and made “against one’s better knowledge”
	German Law Personality Right	- 1954, Bundesgerichtshof declared that “personality” was a similar right within the meaning of 823(1) of the German Civil Code. - The court’s justification for disregarding the text of the German Civil Codes is that arts. 1 and 2 of the German Constitution protect human dignity and person
	German Law Insult	- Insult: - Manifestation of disrespect for the injured party - Must be unlawful to legally justify condemnation - Not unlawful if the adult woman consented contact - No requirement that Δ intended act to be insulting or that victim experienced & understood the act as an insult - Whether there has been injury to honor depends not only on the surrounding circumstances, but the views, the customs of life and the social circumstances of the parties as well as the linguistic and social place where the expression occurred : relevant question was not how the sender understood the letter, but how statement in its context would be read by a naïve and unsophisticated reader, a reasonable 3rd party
	Free Speech and Defamation U.S. Law Hustler Magazine v. Falwell (1988) - Parody of Campari ad which contained the name and caricature of Jerry Falwell - Portrayed Falwell and his mother as drunk and immoral, and suggests that he is a hypocrite who preaches only when he is drunk	- Ad even claimed as disclaimer that it was a parody, not to be taken seriously - Ct: 1st Amendment prevailed here b/c this was a parody
	Group Insult U.S. Law	- Generally courts have refused to allow an action to be brought for defaming a large group such as an ethnic or religious group. – NO group defamation action! - If involves public figure, you will lose because of free speech!
	Group Insult U.S. Law Nieman Marcus v. Lait - Δs published a book which charged that some of the models and saleswomen of the store in Texas were “call girls” and that most of the men were gay. - There were 382 saleswomen and 9 models and only 25 salesmen	- Ct: dismissed the action by the women but not the men; noted that the group of men was small and that the allegation concerned ‘most’ of them. - Came down to statistics!
	French Law-Free Speech and Defamation Case 1: - Δ published an article which contained a remark about Anne Sinclair, a TV journalist, that she was a tart kosher pork butcher	- Ct: “tart” was merely banal and vulgar, but the other expressions had a “regrettable anti-Semitic connotation” and exceeded the ‘rights recognized any critic’” - Found a violation of art. 29(2) of the Law of July 1881 - While on appeal, Δs published another article referring to π as a “Christian butcher” - Court increased the damages
	French Law Group Defamantion -	Case 2: - Δ made statement on radio that implied entire Jewish community was a participant in a huge fraud (the Holocaust) from which it was said to have the benefits. - He was convicted of defamation both criminally and civilly
	German Law Group Defamation - Δ’s article called German soldires torturers & murderers; deemed insult to present and past German soldiers - Ct: Δ couldn’t justify expressions by invoking basic right to freedom of opinion b/c he was abusing it, defaming.	lower ct pushed the limits too far by holding all former soldiers were insulted - Re: Group defamation: - Possible to insult # of individual people under collective description in such a way that all the members of a distinct group of persons are injured by it. - Essential criterion: - The group of persons described must be set apart from people in general by specific characteristics so clearly that the circle of those injured is clearly bounded. - That the groups of persons be numerically surveyable - Ct: only soldiers active at the time of the insult were insulted - They are a collective group that has a clear boundary and can be surveyed - Circle of former soldiers is so large and unsurveyable that the court found it doesn’t constitute a group of persons susceptible of a collective insult - Ct: associations of persons, like the German army, are susceptible of insult - Ct: insult was aimed at the institution of the army as much as individual soldiers
	Group Defamation-German Law Case 2: Constitutional court (1994) - Person had a bumper sticker on car “Soldiers are murderers”; Germ Ct held Δ liable	- Constitutional court struck it down as a violation of freedom of expression as protected by art. 5 I 1 of the German Constitution - Limits to freedom of expression: - Protection of youth and the right to personal honor - Must weigh in each case the freedom of opinion and the status of the legal interests injured by freedom of speech - Case by case analysis
	Invasion of Privacy English Law	- No right to privacy  no right of action for breach of person’s privacy  would have to fall under a different action (i.e. libel or malicious falsehood) - But, they are a part of the European Convention on Human Rights (Art 8 protects privacy)
	German Law Personality Right	- 1954, Bundesgerichtshof declared that “personality” was a similar right within the meaning of 823(1) of the German Civil Code. - The court’s justification for disregarding the text of the German Civil Codes is that arts. 1 and 2 of the German Constitution protect human dignity and person
	German Law Insult	- Insult: - Manifestation of disrespect for the injured party - Must be unlawful to legally justify condemnation - Not unlawful if the adult woman consented contact - No requirement that Δ intended act to be insulting or that victim experienced & understood the act as an insult - Whether there has been injury to honor depends not only on the surrounding circumstances, but the views, the customs of life and the social circumstances of the parties as well as the linguistic and social place where the expression occurred : relevant question was not how the sender understood the letter, but how statement in its context would be read by a naïve and unsophisticated reader, a reasonable 3rd party
	Free Speech and Defamation U.S. Law Hustler Magazine v. Falwell (1988) - Parody of Campari ad which contained the name and caricature of Jerry Falwell - Portrayed Falwell and his mother as drunk and immoral, and suggests that he is a hypocrite who preaches only when he is drunk	- Ad even claimed as disclaimer that it was a parody, not to be taken seriously - Ct: 1st Amendment prevailed here b/c this was a parody
	Group Insult U.S. Law	- Generally courts have refused to allow an action to be brought for defaming a large group such as an ethnic or religious group. – NO group defamation action! - If involves public figure, you will lose because of free speech!
	Group Insult U.S. Law Nieman Marcus v. Lait - Δs published a book which charged that some of the models and saleswomen of the store in Texas were “call girls” and that most of the men were gay. - There were 382 saleswomen and 9 models and only 25 salesmen	- Ct: dismissed the action by the women but not the men; noted that the group of men was small and that the allegation concerned ‘most’ of them. - Came down to statistics!
	French Law-Free Speech and Defamation Case 1: - Δ published an article which contained a remark about Anne Sinclair, a TV journalist, that she was a tart kosher pork butcher	- Ct: “tart” was merely banal and vulgar, but the other expressions had a “regrettable anti-Semitic connotation” and exceeded the ‘rights recognized any critic’” - Found a violation of art. 29(2) of the Law of July 1881 - While on appeal, Δs published another article referring to π as a “Christian butcher” - Court increased the damages
	French Law Group Defamantion -	Case 2: - Δ made statement on radio that implied entire Jewish community was a participant in a huge fraud (the Holocaust) from which it was said to have the benefits. - He was convicted of defamation both criminally and civilly
	German Law Group Defamation - Δ’s article called German soldires torturers & murderers; deemed insult to present and past German soldiers - Ct: Δ couldn’t justify expressions by invoking basic right to freedom of opinion b/c he was abusing it, defaming.	lower ct pushed the limits too far by holding all former soldiers were insulted - Re: Group defamation: - Possible to insult # of individual people under collective description in such a way that all the members of a distinct group of persons are injured by it. - Essential criterion: - The group of persons described must be set apart from people in general by specific characteristics so clearly that the circle of those injured is clearly bounded. - That the groups of persons be numerically surveyable - Ct: only soldiers active at the time of the insult were insulted - They are a collective group that has a clear boundary and can be surveyed - Circle of former soldiers is so large and unsurveyable that the court found it doesn’t constitute a group of persons susceptible of a collective insult - Ct: associations of persons, like the German army, are susceptible of insult - Ct: insult was aimed at the institution of the army as much as individual soldiers
	Group Defamation-German Law Case 2: Constitutional court (1994) - Person had a bumper sticker on car “Soldiers are murderers”; Germ Ct held Δ liable	- Constitutional court struck it down as a violation of freedom of expression as protected by art. 5 I 1 of the German Constitution - Limits to freedom of expression: - Protection of youth and the right to personal honor - Must weigh in each case the freedom of opinion and the status of the legal interests injured by freedom of speech - Case by case analysis
	Invasion of Privacy English Law	- No right to privacy  no right of action for breach of person’s privacy  would have to fall under a different action (i.e. libel or malicious falsehood) - But, they are a part of the European Convention on Human Rights (Art 8 protects privacy)
	U.S Law Privacy Rights	- RS of torts: 4 kinds of privacy rights 1. Publication of private facts 2. Publication that places a person in a false light 3. Appropriation of a person's name or likeness 4. Unreasonable intrusion upon the seclusion of another
	U.S. Law Publicity Given to Private Life	One who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of his privacy, if the matter published is of a kind that: (a) Would be highly offensive to a reasonable person, and (b) Is not of legit concern to the public. Howell v. NY Post - Lady in a therapy facility; picture taken talking with famous person - No protection this time either – even if standing next to newsworthy person = Δ So defense = newsworthiness!
	Times v. Sullivan Truth was a defense but to get it as a defense need there to be no errors of fact - So he said that the media was liable for printing this ad with factual distortions	Times v. Sullivan - - But the court said that when an action is brought against the media by a public figure: has to show intent/fault
	Invasion of Privacy French Law	- Art. 9: Each person has the right to respect for his private life. (viol. of privacy = dommage) - Protected by the other tort articles - Much greater protection, even for public figures: - Need consent - Authorization to the press can give up the right to publicity - French very sensitive about medical secrets & privacy associated with medical condition
	Invasion of Privacy French Cases	1st case: - π was well-known actress; Δ-newspaper published photo of π that showed signs of her illness (story about her illness) - Photo taken with a telephoto lens - Ct: found for π: photos were unnecessary and without her knowledge 2nd case on pp. 269: - Famous singer (π) out in public place w/ young woman; Δ took picture - Ct: π needed to give tacit authorization for the photo to be taken and published - Here: π was very private – no indication he had consented to photo - Rule: may use picture of famous person, but must be while he is doing his thing (tacit permission) – not ok re: personal life (Here: not performing & generally shy)
	German Law Right to Privacy	- §823: general right of personality Law governing the Right to Work of Pictoral Art and Photography - §22: Right to one's own image. Images shall be disseminated or publicly displayed only with the consent of the person portrayed. Consent deemed to be given if when person receives monetary payment. - Also gives protection to relatives after person dies: Post-Humous protection
	German Law Right to Privacy Pictures Exception	- §23: Exceptions (OK to use picture) Only 4 exceptions! - Images in the area of contemporary history(e.g. where party concerned is making/part of our history) - Images in which the ppl appear only as an incident to the landscape - Images of gatherings, processions, & similar events in which the person in question was a participant - Images that are not made upon order insofar as their dissemination or display serves an important artistic interest
	German Law Right to Privacy Exception in Public Interest	- Public officials may duplicate, disseminate or publicly for purposes of the administration of justice and public security without the consent of the person entitled, that is, the person portrayed or his relatives.
	English Law Breach on Confidence	Stephens v. Avery: Chancery - Breach of confidence - 3 elements: 1. Info itself must have the necessary quality of confidence about it 2. That info must have been imparted in circumstances importing an obligation of confidence 3. There must be an unauthorized use of that info to the detriment of the party communicating it
	U.S. Test for Newsworthiness Diaz v. Oakland Tribune - Diaz is a transsexual	- 3 part test for determining newsworthiness: - The social value of the facts published - The depth of the article's intrusion into ostensibly private affairs and - The extent to which the party voluntarily acceded to a position of public notoriety - Does the fact relate to her fitness for her public role? - Ct : she is a limited public figure: this is a small arena - The relation of her sex doesn't relate to her fitness of her sex - Ct: it’s irrelevant what her sex is to the performance of her job - If info doesn't relate to performance in office, then should be kept private - If Diaz lied re: surgery then maybe lying relates to trustworthiness in office
	French Law Newsworthiness	Charlie Chaplin case: - Numerous facts about him & family that had been published before - French law: limit on redisclosure of facts: would have been fine if it had been published by a historical magazine but not entertainment, etc - Unless specifically authorized, redisclosure becomes a new form of invasion - Facts may have come out before, but still need special auth. to re-publish 1988 case about judge - State of health said to be private & divulging such information was not ok - Cf: in US, judge’s health can likely be related to the judge's function 1979: former wife of Barclay - Issue: is it of legitimate interest to the public?
	Re: Historical Events – Protected (exception)	U.S. Law – black migration case – OK to publish name & story w/o consent French Law – Chaplin case – OK if scholastic; but Nazi case (p. 294) – even historian doesn’t have right to bring up private life w/o necessity (here: disclosed mistress, etc.) German Law – truth is a defense – disclosure of Nazis = history
	French Law Pure Economic Harm 1382-1383	- French Civil Code: Articles 1382 – 83 say that the D is liable for harm - Thus, in theory the D is liable for harm whether it is economic or not. - No consideration to the difference btwn property damage and economic lossrecover either way - Cases seem to be more concerned with causation; no principle of pure economic loss
	False Information English Law Hedley Byrne & Co. v. Heller & Partners	- Where π relied on the Δ’s skill and judgment & Δ knew or should have known about the reliance & Δ gave false information w/o the qualification that he accepted no responsibility, Δ has assumed some responsibility - But case also establishes the principle that person can be liable for false information that causes financial/economic loss
	Pure Economic Harm German, English, and U.S. Law	- Anglo-Saxon idea that allowing for any recovery for pure economic loss where there is no physical harm would open the floodgates for an indeterminate number of ‘injured.’ - Only can recover for this if the Δ committed a crime - Must be a concurrence b/w criminal & tort law in order to be recoverable - If you have the touchstone: some bodily injury or some property damage  then can recover economic damages as consequential damages - But if harm caused intentionally, then economic harm is recoverable (so Δ’s intent is important)
	Physical Harm to 3rd Party’s Property Anglo-American Law Spartan Steel & Alloys Ltd v. Martin & Co (1973) - Facts:π ‘s factory required continuous power/electricity from power station to keep the heat up for the furnace. Δs employees damaged electricity cable, which caused power station to shut down 14 ½ hours - π claimed losses for material in furnace that hardened & could not be used due to loss of electricity + losses for 4 other melts that would have been put in furnace but for loss of power	- Issue: If cutting off of the supply causes economic loss to the consumers, should it as matter of policy be recoverable? And against whom? - Holding: π can recover for the one melt already in the furnace and the loss of profit on that one but not for the 4 potential melts. - Recovers for the one melt b/c that’s damage to property and the loss of profit relates to that damage. But the court was unwilling to go any further.
	Physical Harm to 3rd Parties property German Law	Case 1: - Δ cut underground electric cable in the course of excavating property of a 3rd party, which cut off the power to P’s factory. - Ct: π couldn’t recover b/c the right to run its enterprise without such interference was not a “similar right” within the meaning of §823 - π suffered economic harm, not harm to the legal interests and absolute rights protected by §823 Case 2: - Δs cutting down trees; one fell on the power line, which cut off the electricity to P’s incubators for 6 hours; as a result Ps lost many chickens - Ct: π could recover for the loss of the chickens - Destruction of a thing - One who is at fault for breaking a water pipe must answer for the harm that other property suffers from the escaping water.
	Plaintiff’s Property Made Unusable-U.S. Law People Express Airline v. Consolidated Rail Corp. (1985) - Δ’s alleged negligence caused a dangerous chemical to escape from a R/R tank car, resulting in the evacuation of area - safety & health threatened - Airline(π), forced to evacuate; suffered interruption of business w/ resultant economic loss	- Court talks about this threshold rule: - US: to recover for econ. loss, must be some injury to π or his prop. - If no physical harm, then there is no recovery for economic loss. - judge is basically saying this rule is ridiculous - born out of fear of opening Pandora’s box if econ. loss is allowed w/o physical harm
	Plaintiff's Property Made Unusable-German Law Case of the Blocked Canal - Ship trapped in the canal could recover b/c it was made unusable	- Ships/barges that could not come into the canal could not recover (bec. could be used for other purposes/their normal use) - Not physical damage, but still a property loss in that owner could not use his property (for ship that was stuck) - Judge must put loss into “container” of property loss for π to recover - Similar to Eng. law – drawing lines in (kind of) the same place
	False Information U.S. LawUltramares Corp. v. Touch - Accts negligently prepared balance sheet – provided incorrect info	- Δ should be liable for incorrect balance sheet if due to fraud - Accts owed their employer, the creditors and investors a duty to prepare stmt w/o fraud - BUT no duty to prepare it without negligence  if liability for negligence, accountants may be exposed to liability in an indeterminate amount for an indeterminate time to an indeterminate class.
	False Information U.S. Law Glanzer v. Shepard: - Δs: public weighers; weighed and certified beans for seller; P bought the beans and found they were underweight; sued D	- Ct: Δs held themselves out to the public as skilled & they knew the beans had been sold on the faith of their certificate payment would be made. - Assumption of the task of weighing was the assumption of a duty to weigh carefully for the benefit of all whose conduct was to be governed.
	False Information U.S. LawWhite v. Guarente - Like Ultramares, except here there is a fixed, definable and contemplated group whose conduct was to be governed	- Accts did owe duty to limited ptrs when they failed to discover that gen. ptrs had withdrawn funds from the ptp in violation of the ptp agreement
	False Information German Law	- Irrelevant whether the parties giving and receiving info intended to establish K-relations - Enough that party giving info to the one receiving it has entered into relationship that ought to be regarded as contractual as matter of good faith & therefore should be determined to be contractual.. - Creates a K-duty towards the one receiving the info of good faith - When you have a K, no floodgate argument and you usually are recovering pure economic loss there - So if ct can say that this is sort of a K, then could recover pure economic loss - German law – contract like duty for which Δ can be liable
	Harm Suffered Because Another Has Been Harmed Traditional Anglo-American Law	- Loss of consortium – stemmed from proprietary interest in wife/child’s services - Was only recoverable if wife/child injured (not if they died) (now, OK by statute) - US – R 2nd 693(1) adopts loss of consortium as an action (allows wife to recover) - Miscarriage cases – Δ beat people/ hit father in Π’s presence; Π suffers miscarriage; Π recovers in both cases, but unclear under which tort - Infliction of Emotional Distress - Wilkinson (Eng.) & R2nd 46 (US) – intentional = recoverable - “Zone of Danger” rule re: liability for NIED – must be exposed to danger himself to recover
	Harm Suffered Because Another Has Been Harmed Modern English Law	- Rule: no need to show direct impact to Π or fear of immediate personal injury, but must be closely related to victim; requires proximity to accident/ w/in earshot or sight (can’t come upon it later unless in immediate aftermath) – proximity must be close in time & space! - Ct does away with family member requirement – merely requires close tie (Π to prove) - Mere fact of particular relationship ≠ sufficient – must have close relationship! - Tv ≠ “within sight/hearing of the event or its immediate aftermath
	Harm Suffered Because Another Has Suffered Modern U.S. Law	Dillon v. Legg - Child killed by car; mother there, but outside “zone of danger” – allowed to recover - Old rule: zone of danger – transferred intent - Rule: must see the accident happen & must be close relative to recover (p. 325) Elden - No recovery if unmarried  doesn’t meet close relationship element Thing v. La Chusa and Tobin v. Grossman - No recovery unless Π actually sees the accident (even w/in earshot ≠ witness!)
	Harm Suffered Because Another Has Suffered French Law Dommage par Richochet 1382 and 1383	dommage par ricochet” (art 1382-83): injury to one person causes harm to another - Old rule – 2 limitations: (1) claimant must be parent/spouse of victim + (2) death of victim
	Dommage Par Riccochet New Rules	- Harm to victim must be exceptional ; here: 15% disabled ≠ exceptional! (16 Feb 1967) - Harm to victim must be “certain & direct”; applies to physical & non-physical harm; here – π’s father disabled 100% - recovered (Case of 23 May 1977) - Ward who was raised from birth allowed to recover when guardian died – special relationship allowed for recovery (Case of 20 Jan 1967) - Ct allowed recovery for grief re: death of his racehorse (Case of 16 Jan 1962) - But Ct restricted rule by rejecting claim for damages by spouse of man killed in car accident (Case of 1 March 1973) Summary: relationship must be parent/child/spouse; no requirement for proximity/ witnessing accident; injury to victim must be “certain & direct”
	Harm Suffered By Another German Law	823.1 – π can recover if injury to health (specific kind of harm) - Drunk driver killed π’s companion who she was holding hands with at the time; π suffered sleeplessness & shock  Rule: it doesn’t matter if π was engaged to victim; this is case of shock produced by immediate experience of death of another (not news of death)  question of causation (Case of 11 May 1971) - Law rejects claim for harm through mental pain insofar as pain is not itself the result of an injury of one’s own body or health (here wife suffered upon hearing news of husband’s death – no recovery) (Case of 11 May 1971) - Ct denied recovery where husband in slight accident; π claims shock – outside normal experience that such an event would cause an injury to health of a person who hadn’t experienced the accident herself – no adequate causal relationship (Case of 25 Oct. 1968)
	Intent to Cause a Different Harm U.S. Law	Talmage v. Smith - Classic case of transferred intent - Kids on Δ’s roof; Δ throws stick at kidA but hits kidB on other side of roof - Ct: Δ liable to kidB! Wyant v. Crouse - Δ trespassed on land & inadvertently set fire to π’s house - Ct: Δ doing a wrongful act – Δ liable - Rule: (US & Eng)  if intend Tort1 but do Tort2  Δ still liable!
	Intent to Cause a Different Harm or Commit a Different Tort German Law	823(1): “intentionally or negligently”  if Δ intends Tort1 but does Tort2  Δ liable §826: “intention in manner contrary to good morals”  Δ not liable if does Tort2 NB: Δ who intended to cause π one kind of harm is liable if he inadvertently caused that π another kind of harm BUT Δ is not liable if he intended to harm πA but actually harmed πB - If Δ intends harm to π1 but harm π2  Δ NOT liable! - If Δ envisions possibility of harm to π & does it anyway, Δ liable (e.g. case of dropping anchor & damaging cable – conditional intent) - So, if seek to violate a §823 right, but violate different right  Liable!
	Intent to Cause a Different Harm or Commit a Different Tort French Law	- If intend harm to π1 but harm π2  Δ not liable Case of 5 Jan 1970 - Δ shoots at burglar & accidentally hits neighbor - Ct: no intentional harm w/in meaning of Art. 12(2) if Law of 13 July 1930 unless the harm that occurred was wanted by its author Case of 14 Dec. 1987 - Pierre Prebose case – trespassing hunter; owner takes his gun & smashes it; gun goes off & hits trespasser - Δ is liable! - Gordley: problem #1 re: intent! Ct fudged!!
	Intent & Knowledge English Law	- If A hits B intending slight harm, but B falls down & suffers greater harm, A is responsible for the greater harm if it is a direct consequence of the blow; he need not even foresee the possibility of the greater harm, let alone intend it
	Intent and Knowledge US Law	Garratt v. Dailey - Kid pulls chair out from under old lady; kid didn’t intend for her to hit the ground & get hurt BUT he knows she will fall (substantial certainty) - Ct: if kid had knowledge, then he’s liable - Gordley: #2 problem re: intent!
	Intent and Knowledge French Law	intentional fault exists when the author of the harm acted intentionally in order to cause a prejudice to another & probably when he acted in manner that he must have known would injure another” – but text says this isn’t right ??? - G: liable if intent, but there are no good cases!
	Intent and Knowledge German Law	- “A person acts intentionally when he knows that his conduct will lead to an unlawful violation of another’s body, property or similar right & who attains this result willfully & consciously” (p.353) - “It is enough if he recognized the possibility of such an interference, and proceeds to act despite this knowledge, taking into account that action may occur, although he may even hope that it does not” (CONDITIONAL INTENT) - If intent (including conditional intent), Δ liable (G: isn’t this negligence??)
	Meaning of Negligence English Law	- In every case where duty of care exists, Cts must consider whether the risk was sufficiently great to require Δ to do more than he has done - Consider: magnitude of risk, importance of object attained (ex: fast trains vs. really slow but safe trains) & practicability of precautions
	Meaning of Negligence German Law	- Sometimes cite Learned Hand formula - Ex: cooking schnitzel & accidently puts rat poison in it bec. jar not marked (p.358
	Meaning of Negligence U.S. Law	- Posner/Learned Hand – Economic Formula: is Burden < Probability * Liability (compare consequences of taking risk vs. taking precaution) US v. Carroll Towing Co.
	The Reasonable Person Standard	Eng./US– std = reasonable person under like circumstances French – std = bon pere de famille (reasonable man in same situation) Germ.- §276(1): person acts negligently who fails to use care ordinarily required
	Children and the Mentally Ill \ English Law	- Ct: very young child can’t be guilty of contrib. negligence; older child may be, but depends on circumstances Buckley & Toronto Transp. Com’n v. Smith Transp. - Delusional truck driver caused collision; found to be insane - Ct: Δ not negligent – NOT held to reasonable person std Buckley & Toronto Transp. Com’n v. Smith Transp. - Delusional truck driver caused collision; found to be insane - Ct: Δ not negligent – NOT held to reasonable person std Atty General of Canada v. Connolly-Ct: if Δ not capable of foreseeing that his act involves significant risk of harm to others than not sufficient awareness/consciousness of nature of act to make it voluntarily negligent act
	Children and Mentally Ill U.S. Law	R2nd Torts §283A: Children - If Δ is a child, held to std of reasonable person of like age, intelligence & experience under like circumstances - If Δ-child is engaging in adult activity – may give rise to exception to rule (ex: child driving a car) – held to adult std R2nd Torts §283B: Mentally Ill - Unless Δ is a child, insanity does NOT relieve Δ from liability for conduct not conforming to std of reasonable man under like circumstances - Majority rule = insane Δ held to adult/reasonable person std
	Children and Mentally Ill German Law	Law Civil Code §827: - Insane Δ not liable for damage BUT if he is drunk by his own will, be is liable Civil Code §828: - <7 years old is not liable for any damage to another - > 7 years old, but <18 – not liable for damage if he didn’t have understanding required to realize his responsibility Civil Code §829: (rich kid provision) A person who, for reasons cited in sections 827 and 828, is not responsible for damage he caused in the instances specified in sections 823 to 826 must nonetheless make compensation for the damage, unless damage compensation can be obtained from a third party with a duty of supervision, to the extent that in the circumstances, including without limitation the circumstances of the parties involved, equity requires indemnification and he is not deprived of the resources needed for reasonable maintenance and to discharge his statutory maintenance duties.
	French Law Children and the Mentally Ill	489-2: - One who causes harm to another, even if he’s crazy, is liable - Insane held to same std as reasonable person - Courts not bound to investigate whether the minor had the capacity to discern the consequences of the faulty act which he committed. Case of 9 May 1984 - 5 year old killed by car; Ct reduced damages according to victim’s fault - Child held to reasonable person std (comparative negligence) - See also case of 13 yr old electrocuted by defective wire – Ct decreased damages - boy’s fault for screwing in bulb w/o turning off current
	US & UK-The duty to Act Principles	- US/UK: as a general rule no duty to rescue a stranger even if it does not require much - General rule about non-action: unless you the Δ have assumed a duty to act or you stand in a special relationship to the victim, then you are not liable for a pure failure to act for that person's benefit
	Duty to Act U.S. Law	- No duty to rescue except in a few states that have statutes, generally criminal, which impose a duty, under certain limited conditions, to rescue another in peril - Prosser: the law has persistently refused to impose on a stranger the moral obligation of common humanity to go to the aid of another human being who is in danger, even if the other is in danger of losing his life.
	U.S. Law Duty to Act Yania v. Bigan - Yania and Bigan were doing business; Bigan enticed Yania to jump in the water which he knew to be dangerous; Yania jumped; drowned	- RS of Torts §322: If the actor knows or has reason to know that by his conduct, whether tortious or innocent, he has caused such bodily harm to another as to make him helpless and in danger of further harm, the actor is under a duty to exercise reasonable care to prevent such further harm. No duty to rescue Yigan unless Bigan was legally responsible for placing Yania in the perilous situation. - Cited another case: “if it appeared that the deceased, by his own carelessness, contributed in any degree to the accident which caused his death, the Ds ought not to have been held to answer for the consequences resulting.”
	U.S. Law Duty to Act Osterlind v. Hill - Δ rented a canoe to π who was clearly drunk; canoe overturned; π cried for an hour; Δ let him drown - Ct: the deceased was not in such a helpless condition that it was negligent to rent him a canoe	- “The failure of Δ to respond to the deceased’s outcries is immaterial. No legal right of the deceased was infringed.” - No liability for guy who rented him the canoe - But note: in the time of Osterlind and Yania US states followed doctrine of contributory negligence - negligent π collects NOTHING! (Ct uses rule here)
	Duty to Act French Law	Criminal Code Art. 63(2) - One who voluntarily abstains from giving assistance to a person in peril when he can do so without risk to himself or a third party is punishable by imprisonment of 3 to 5 months and a fine of 360 to 20,000 francs. - Civil standard fits into criminal standard – if you violate criminal code, you are at fault (and satisfy the civil requirement for liability – art. 1382-83of French Civil Code)
	Duty to Act German Law	German Law Criminal Code §323c - One who does not give help in the event of an accident, a common danger or need although it is necessary and demanded of him by the circumstances, and, in particular, is possible without serious danger to himself & without violation of other more important duties is punishable by imprisonment of up to 1 year or with a fine. - Not express action re: tort, but Germans say yes there is!
	Rescuing Those Who Attempt Suicide	French Law Case of 13 May 1998 - Δ charged with failure to come to the assistance of Emmanuel G. after he told her he would hang himself, went into the bathroom and did it - Ct: Δ not guilty b/c the crime presupposed that there is an imminent and existing peril necessitating immediate assistance; Ct found circumstances did not lend to this German Law Case of 12 Feb. 1952 - Δ’s husband killed himself by hanging; Δ found him unconscious (not dead yet – could still be rescued), but she let him die - The turning point is the word “accident” used in the Criminal Code: - “accident” means a sudden outer event that causes serious harm to persons or things and threatens to cause further harm - This outer event is independent of the will of the victim; he can only try to avoid it - Committing suicide is NOT an outer event - If rational choice – his business; if he’s mentally unsound – rescue!
	Rescuing One's Victims French Law	Case of 3 Dec. 1997 - Serge G. was seriously injured &immobilized after car accident; Somir & Nysor arrived & stole his jacket and some other things; left w/o helping him - Ct: guilty for the non-assistance to a person in peril and theft - Liable criminally for theft & failure to render assistance - Also liable civilly for ¼ of person’s injuries
	Rescuing One's Victim's German Law	Case of 6 May 1960 - Δ beat F, a person he just met, senseless and left him in the street; F died from those injuries - Court found him guilty for the wrongful omission of assistance
	Failing to be in Fit State to Rescue German Law Case of 22 Feb. 1974 - Drunk innkeeper; accident out front of the inn; people ask to use the phone, but he tells them to go away	- Ct: being drunk is no defense! You have duty to rescue! Δ liable! - G: maybe there is a special standard required of innkeepers
	Strict Liability English Law
	Strict Liability English Law Cambridge Water Co. v. Eastern Counties Leather - Δ is old, established leather manuf.; used a chemical solvent in its tanning process; over a period of years, gallons of the chemical were split on the floor, which then seeped into the soil; chemical reached π’s well they used to get water for domestic use - Distance from Δ’s tannery to π’s borehole: 173 miles	- Holding: π could not recover either in nuisance or under the rule from Rylands unless Δ could have foreseen that its activity might cause the harm the π suffered - What the court found is that foreseeability is a requirement - The tort of negligence pushed in this req of foreseeability - If this was unforeseeable that solvent would contaminate a well 173 miles away, then aren’t you really talking about fault? if they can't foresee it, they aren't at fault - Kind of a retreat back from SL
	Strict Liability US Law	R3rd Torts §21: Abnormally Dangerous Activities (Tentative Draft on Traditional SL) (a): a Δ who carries on an abnormally dangerous activity is subject to strict liability for physical harm resulting from the activity (b) An activity is abnormally dangerous if: (1) The activity creates a foreseeable and highly significant risk of physical harm even when reasonable care is exercised by all actors; and (2) The activity is not a matter of common usage.
	Strict Liability U.S. Law-What is Abnormally Dangerous	- The application of the rule to certain conditions & activities follows English pattern - Includes: water collected in quantity in a dangerous place; explosives; blasting; pile driving; crop dusting fumigation of part of a building with cyanide gas; factories emitting smoke, dust or noxious gases in the midst of a town, etc - Like English, don’t apply to: water in household pipes; the tank of a humidity system; authorized utility mains; gas in a meter; electric wiring; a dam in the natural bed of a stream; an auto; a runaway horse, etc
	Strict Liability German Law	- No provisions on strict liability in the German Civil Code; instead since 19th century, German legis. has enacted special statutes holding a person strictly liable who engages in certain activities (R/R, planes, nuclear reactors, but if it falls through the cracks – too bad!) - Germ. Cts have refused to extend the scope of strict liability by drawing analogies to these activities - Considers strict liability as anomalous and exceptional - Special statutes for strict liability: - Limit the damages - So the insurance knows the parameters for what to insure - No worry about opening floodgates that way - All of this is outside the civil code b/c: - The principle of fault is the essence of the law of tort for the Germans - This concept of strict liability for them is exceptional since it’s not based on fault
	German Law Strict Liability Extensions beyond RR	- Law of liability was extended to cover cases in which death or personal injury is caused ‘by the effects of electricity, gases, vapors, or liquids’ coming from an ‘installation for their transmission or supply by cable, pipe or otherwise.’ - Included in particular are high tension cables, gasholders, steam conduits, and waterpipes. - Liability is excluded only in cases of force majeure Road Traffic Act of 1952: liability of the custodian of a motor vehiclenot as strict - Makes them liable for damage to person or property which arises “through the operation of the vehicle.”
	Liability to the Abnormally or Unexpectedly Vulnerable English Law	Eastern & South African Telegraph Co v. Cape Town Tramways - The principle of Rylands, which subjects to a high liability the owner who uses his property for purposes other than those which are natural, would become doubly penal if it implied a liability created and measured by the non-natural uses of his neighbor’s property.” Western Silver Fox Ranch v. County Council of Ross & Cromart - Just b/c you are breeding animals that are not indigenous to the land does not mean it’s a non-natural use of the land - Yes silver foxes are more nervous and may eat their cubs - But this, however, does not alter the quality of the risk to which he who blasts subjects his neighbor, but only the quantity of the damage the neighbor will suffer - G: π made himself more vulnerable! (abnormal vulnerability)
	U.S. LawLiability to the Abnormally or Unexpectedly Vulnerable Masden v. East Jordan Irrigation Co - Δ used explosives 100 yds away; caused minks to get nervous & kill kittens	- Ct: “He who fires explosives is not liable for every occurrence following the explosion which has a semblance of connection to it.” - Shocks, air, vibrations, thrown missiles are all illustrative of the anticipated result of the explosives; they are physical as distinguished from mental in character.
	Liability to the Abnormally or Unexpectedly Vulnerable German Law	: an adequate causal relationship b/w Δ’s conduct & π’s harm exists when an act/omission is sufficient to produce the result that occurred in general and not under circumstances which are wholly particular, wholly improbable, and to be left out of account in the ordinary course of events - An adequate causal relation is denied for psychological consequences when the harm occurs b/c of an unusual condition to that which was affected by the accident despite the non-dangerous character of the event which it is considered objectively
	French Law Liability for Harm Caused by Objects in One's Custody	Art. 1384 - A person is liable not only for the damage he causes by his own act, but also for that caused by the acts of persons for whom he is responsible or of things that he has under his guard. - Persons for whom he is responsible-->sounds kind of like vicarious liability - Not intended to be a SL provision Art. 1385 - The owner of an animal, or the person using it during the period of usage, is liable for the damage the animal has caused, whether it was under his guard or whether it had strayed or escaped Art. 1386: - The owner of a building is responsible for the damages caused by its collapse when this has taken place b/c the building was not maintained properly or b/c it was poorly constructed.
	French Law Requirement of "An Act of an Object"	1384 not applicable where damage caused by a personal act of the defendant and was used only as instrument obedient to his hands. Not applicable where a D, standing in the street outside the car, could not be considered an ensemble and where car was not instrument of injury. Where skier causes another to fall, skis and skier must be treated as forming an ensemble, a whole with own dynamism. Movement of skier depends so closley on the skis that, even if his body caused the emotion that brought about the fall,ski's were certainly the instrument of damage. A person on the road must be expected to be passed, and wrong maneuver on his part has no relation with the passing absent a contact between the two vehivles, D bears the burdens of proving role of D vehicle in a crash. P's son falls over chair in cafe. In establishing presumption of responsibility against the guardian of an object whose act caused the damage, the presumption is not rebutted unless D proves that the act could neither have been foreseen nor prevented by him. 1384 doesnt distinguish between intert or moving object. Sufficient to that the object in some caused the damage without which it would not have occurred. Where P slips on the floor, D not liable because P hasn't proved the floor was a generating cause of the accident. If object not in motion, or if in motion and no contact with P, P has the burden of proving the harm was caused by the act of an object. Otherwise D bears the burden of proving it was not. Where cause of damage unknown 1384 presumption established, each of the guardian liable for the damage caused to the other. Can avoid by showing that object, inert or not, played a passive role and only suffered a separate force which produced the damage, However in a collision where vehicles lights are off @ night, no basis for finding that vehicle merely suffered shock rather than facilitating its cause. V required to show that abnormal use of the object which is inert at the moment of damage was simply subject to alien action.
	French Law Liability for Harm Caused by Objects in One's Custody	Case of 19 March 1956 - Ricochet during hunting ≠ unforeseeable  Δ liable Case of 9 Dec. 1940 - Ricochet after firing at rabbit = unforeseeable  Δ not liable Case of 18 June 1941 - Shot too close to road & caused ricochet  Δ liable NB: to get off, Δ must show that his behavior was completely normal, otherwise, presumption of abnormal & Δ liable Case of 28 Oct. 1943 - Icy road – foreseeable  Δ liable Case of 29 June 1966 - Patch of ice due to sudden freeze = unforeseeable  Δ not liable NB: looks like we are putting fault into strict liability – SL only kicks in when Δ behaving like a negligent person (Gordley: this is weird!)
	Summary of Strict Liability	US: if Δ is doing something overly hazardous & hurts someone  Δ strictly liable Eng: law headed that way, but turned off in Cambridge case – nuisance - Strict liability on your land – Cts define “land” as broader than real property Germ: Code re: very dangerous activity – one by one, clarity as to what is ultra-hazardous (but some things fall through the cracks France: if something under your guard & it escapes, you pay (balloons out to fill Art. 1384) - collision: look at object out of place (folding chair in the aisle, car in wrong lane) - not the same as fault (if epileptic fit causes me to hit you, I pay) - Force majeure/ Cas fortuit (Δ): like negligence concept – if unexpected patch of ice – NO; if should have known of ice – Liable (but fault ≠ element to consider here  confusing!)
	Products Liability US Law	- Who should bear the risk? Seller – can spread cost to all he sells to - Don’t know/can’t know how you manufacture product – how careful can you be? - So complicated, so put liability on Δ manufacturer because he’s the party with all the facts § 402A Special Liability of Seller of Product for Physical Harm to User or Consumer (1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if (a) the seller is engaged in the business of selling such a product, and (b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold. (2) The rule stated in Subsection (1) applies although (a) the seller has exercised all possible care in the preparation and sale of his product, and (b) the user or consumer has not bought the product from or entered into any contractual relation with the seller.
	Products Liability for Drug Manufacturer-U.S. Law	- DES drug  Δ NOT liable – liability on drug manuf only if failed to warn of defect - Rabies vaccine example  Comment k of R2nd Torts: drugs are different re: unreasonably dangerous element! - Ct: drug manuf liability for defective drug NOT to be measured by SL std & bec. public interest in development/availability of drugs, appropriate test = comment K - So real SL = defect in manufacturing because if no warning re: reasonable use, then its negligence (Gordley has trouble w/ drug argument – seems incongruous)
	European Law-EC Directive for Products Liability	- Liable for bringing things into Europe (Cf. U.S. – everyone in chain is liable) - In Europe there is a pecking order: 1. sue manufacturer – if no, 2. sue supplier – if no, 3. sue importer into EU
	Summary of Products Liability	- US: Δ always liable - EU: importer/producer  if cant find them, go down the chain
	Roman Structure of Contract Law	Roman Law - Promise  gift (gratuitous) – unenforceable  exchange (onerous) - “re” – real contracts - “consensu” – K by consent - “formal” – “stipulatio” - “innominate” contracts
	GERM & FRA Structure of Contract Law	anything mutually agreed to = binding; gift binding only if notarized
	Common Law Structure of Contracts Law	- Concept of consideration to make K binding (did promisee/promisor give up legal rights?) - 20th Century  Promissory Estoppel/ Reliance – serves to bind w/o consideration (onerous) - Ex: case where π gives up job & Δ promises to pay her  if rely on the promise, its binding - Doctrine covers marriage cases too - R2nd Contracts §90(2): charitable donation/ marriage settlement specifically addressed - Promissory Estoppel hasn’t caught on outside US; has been accepted in Eng, but more ltd
	Common Law-Moment at Which Contract is Binding	R2nd Contracts §63: acceptance effective upon dispatch (whether or not it reaches offeror)R2nd Contracts §25: Option contract limits offeror’s power to revoke R2nd Contracts §87: Option Contracts must be in writing & signed by offeror, requires consideration; if offeror should reasonably expect to induce action/forbearance of offeree & does induce such action, offer is option K to extent necessary to prevent injustice UCC §2-205: Firm Offers – removes requirement of consideration re: offer by merchant to buy/sell goods in signed writing (3 mo. limit)
	Moment at Contract is Binding	145: Binding Force of an Offer - All offers are irrevocable UNLESS you specifically say you are not bound - While offers are irrevocable, they can expire (§146) - EVERYTHING EFFECTIVE UPON RECEIPT (no mailbox rule!) - Gordley: this may go away w/ email - Offeror bears the uncertainty!
	Moment at Which Contract is Binding German Law	145: Binding Force of an Offer - All offers are irrevocable UNLESS you specifically say you are not bound - While offers are irrevocable, they can expire (§146) - EVERYTHING EFFECTIVE UPON RECEIPT (no mailbox rule!) - Gordley: this may go away w/ email - Offeror bears the uncertainty!
	Moment at Which Contract Law is Binding-French Law	Case of 22 March 1972 - Ct: it’s a question of fact as to when K comes into existence – what is “reasonable time”? - It’s a crap shoot! (NO GENERAL RULE!) - Here: Δ made offer of employment to π, then revoked 9 days later - Ct: revocation too soon after offer made
	Liability Before Final Commitment is Made-English Law	Walford v. Miles - Duty to negotiate in good faith is unworkable in practice - Legal issue here – whether there is a duty to negotiate in good faith or whether a party can w/draw at any time - Agreement to negotiate is too indefinite – no legal content
	Liability Before Final Commitment is Made-English Law William Lacey v. Davis - Δ obtained tenders from 3 builders, including π, to rebuild premises - π’s tender was the lowest & π were led to believe that they would receive the K - π undertook a considerable amount of work in preparing their revised estimate - As a result of π’s estimates and work, the amount Δ received was substantially increased - Δ ended up going with another builder & then sold premises	- Ct: π’s work fell outside the work which a builder, by custom and usage, normally performs gratuitously, when invited to tender for the erection of a building - Ct: no one could expect a business to do this sort of work for nothing and, in normal circumstances, the law would imply a promise to pay on the part of the person who requested the services to be performed. - Ct willing to imply a promise – uses doctrine of quantum meruit – $ the person deserves - Promise is implied irrespective of the intent of the parties at the time the work was done - Shows that UK courts can be less dogmatic/absolute about the pre-K phase
	Liability Before Final Commitment is Made U.S. Law	- Agreement to negotiate in good faith depends on: RS§205 - Whether both parties manifested an intention to be bound by the agreement. - Whether the terms of the agreement are sufficiently definite to be enforced. - Whether there was consideration.
	U.S. Law Promissory Estoppel relating to good faith in negotiations	Ct applied doctrine of promissory estoppel when 1 party breached implied promise to negotiate in good faith - if 1 party breaches this implied promise, other party may get K or reliance damages - Rule: a letter of intent to rent providing that the lessor will take the unit off the market is enforceable if the lessor uses the letter to help obtain financing.
	U.S. Law Promissory Estoppel relating to good faith in negotiations Hoffman v. Red Owl Stores - π sold his business, incurred moving exp., in hopes of getting franchise; Franchise balked - Red Owl led P through steps to becoming a franchisee – but no actual agreement	- Broadening doctrine of promissory estoppel: makes it clear for first time that it is a separate action and not a breach of K action. (note: loss of profit not rewarded) - Injustice would result if promise is not enforced
	Good Faith in U.S.	Courts in the US have recognized a duty to perform a K in good faith once it has been made, but they have NOT recognized a duty to negotiate in good faith absent an agreement to do so or, as in Red Owl, a promise on which the P has relied** - In all of these cases, US courts would give relief b/c of deceit, the breaking of a promise, or unjust enrichment.
	Duty to Negotiatie in God Faith French Law	Case of 20 March 1972 - Ct: V-L deliberately withheld the final estimate of the American firm intended for Gertais & had broken off the negotiations it had entered into with Gervais “brutally, unilaterally, and without a legit reason” when they were far advanced when Gerais, as V-L knew, had made large expenditures, and V-L had kept Gerteis for a long time in a state of uncertainty - Ct: V-L did not live up to the rules of good faith  'abusive breaking off of negotiations" - Looking for abnormal behavior of some kind that is considered faulty - Cf. Eng court – likely no recovery – breach of good faith would not matter legally - Farnsworth acknowledges that this case takes “it” very far Case of 14 Jan 1969 - Δ invited π to the site to discuss the installation of mirrors in apartment building - π installed mirrors in a model apartment and was paid for doing so - After being invited back to the site & receiving exact measurements, π submitted estimate for the entire job - Δ rejected it without informing him of competing offers / giving π a chance to bid a lower - Δ not liable! (what was so different here from the 1972 case? ) - Here: fact that π installed mirrors in model apt was irrelevant; another, entirely separate K was involved, which had been performed, for which P had received normal compensation & did not imply an obligation for the building as a whole - Δ had no obligation to accept that estimate if he found it too high; nor did he have one to communicate to π the offers of competitors Case of 13 Dec. 1984 - Negotiations to hire the actress for a film; K never finalized; important blanks in agreement - Actress said she didn't wrongfully break off negotiations - never gave impression that she was going to sign; remained reluctant throughout; always refused to commit herself - Ct: Δ actress not liable
	Duty to Negotiatie in God Faith German Law	- Not enough to agree on the essential terms - Point of liability is when the parties have conveyed that it will certainly result in a K - An express declaration is not required
	G-->Difference in Good Faith	- US: if I lie before K – fraud/misrepresentation or unjust enrichment - France/Germany: most breach of good faith looks like fraud/misrepresentation cases – even if teetering on brink of K – no liability BUT if promise & rely  Δ liable (same outcome!!)
	Mistake-English Law Griffith v. Brymer	- Π rented flat for coronation procession - King needed operation & procession cancelled - Ct: K was void & π entitled to rescind
	Mistake U.S. Law Sherwood v. Walker - Sale of a cow; cow turned out to be barren	- Rule: If there is a difference or misapprehension as to the substance of the thing bargained for; if the thing actually delivered or received is different in substance from the thing bargained for, and intended to be sold, then there is no K - But if only difference in some quality or accident, even though the mistake may have been the actuating motive to buyer or seller, the K remains binding - Ct: the mistake or misapprehension went to the whole substance of the agreement  A barren cow is a substantially different creature than a breeding one
	Mistake U.S. Law Smith v. Zimbalist - Zimbalist, an internationally known violinist, agreed to pay $8k for 2 violins: one a “Stradivarius” and the other a “Guarnerius” - It turned out that the violins were not made by S or G, but were cheap imitations worth not more than $300.	- Zimbalist sued successfully to avoid the K on the grounds of both mutual mistake and breach of express warranty
	French Law-Mistake	Case of 30 March 1989 - Buyer avoided K for sale of real estate after learning of a highway to be built nearby Case of 23 Feb. 1970 - Sale of chairs described as “marquises” of the Louis XV period - Sale avoided b/c the proved to be chairs of another type
	German Law-Mistake Case of 22 Feb. 1929 - Ming vases case - Characteristic of the vases that was the mistake: parties were of the opinion at the time the K was concluded that the pieces were from the 19th c. when they were really from the time of the Ming dynasty	- Frau F. cannot make a claim on the basis of an error of the commission broker if she herself was not in error - So both parties must be in error - Issue: whether at the time the K was concluded, π took into account the possibility that the object originated centuries ago and had a particular value b/c of its rarity, and whether, had they been aware of this possibility, the K for sale by commission at the price in question would not have been concluded.
	Mistake Denied English Law Kennedy v. The Panama, NZ & Australian Royal Mail - π bought stocks in Δ’s co. b/c it believed Δ had a K with New Zealand to carry mail - Co. also believed it had the K, but the agent that Ked did not have authority to do so	- Rule: where there has been an innocent misrepresentation or misapprehension, it does not authorize a rescission unless it is such as to show that there is a complete difference in substance btwn what was supposed to be and what was taken, so as to constitute a failure of consideration. - If there be a misapprehension as to the substance of the there, there is not K - But if it be only a difference in some quality or accident, even though the misapprehension may be been the actuating motive to the purchaser, the K remains binding.
	Mistake Denied English LawBell v. Lever Bros. - Ks for compensation - After learn that they could have terminated them without compensation	- Rule: a mistake as to quality of the thing Ked for will not affect assent unless it is the mistake of both parties, and is as to the existence of some quality which makes the thing without the quality essentially different from the thing as it was believed to be - Here, the K released is the identical K for both cases and the party paying for release gets exactly what he bargains for - It seems immaterial that he could have got the same result in another way, or that if he had known the true facts he would not have entered into the bargain
	Mistake Denied English Law Amalgamated Investments v. John Walker & Sons - π bought a building from Δ; asked Δ if it was of historic interest; Δ said no; next day found out it was	- Held: the K was not void for mistake
	Mistake Denied English Law Leaf v. International Galleries G: only exception - Δ sold to π a picture which they represented to have been painted by J. Constable; π then tried to sell it and was informed that it had not been painted by Constable	- Ct: there was a mistake about the quality of the subject matter b/c both parties believed the picture to be a Constable; and that mistake was in one sense essential or fundamental - BUT, such a mistake does NOT avoid the K: there was no mistake at all about the subject-matter of the sale (it was a specific picture: “Salisbury Cathedral”) - The parties agreed on same terms on same subject matter  sufficient to make a K - Couldn't recover for mistake b/c no error as to subject matter
	Mistake Denied U.S. Law Firestone v. Union League of Philadelphia - Sale of art: painting was believed in the art circles to be by Bierstadt; turned out it was not; value dropped significantly	- Ct: could not avoid the K - Re: art: “ market value is affected by market perceptions; the market value of a painting is determined by the prevailing views of the marketplace concerning its attribution. Post-sale fluctuations in generally accepted attributions do not necessarily establish that there was a mutual mistake of fact at the time of the sale.”
	Mistake Denied U.S. Law Lenawee County Bd of Health v. Messerly - Pickles bought 3-unit apt building from Messerly - Shortly after, the Lenawee County Bd of Health condemned the property & obtained permanent injunction prohibiting human habitation b/c of sewage system - Sewage system installed by Messerly’s predecessor; unaware of its condition - b/c of sewer’s condition the land had no value at all - There was an ‘as is’ type clause	- Issue: Allocation of risk “as is” clause Pickles had the risk
	Mistake Denied French Law Case of 24 March 1987 - Used the word "attributed to" a certain artist: it’s kind of like an educated guess - Turned out to be truly by this artist and the heirs of the seller want more money	- Cour de Cassation refused to annul the sale - When you describe something as possibly by ‘x’, you realize that there is a risk & you’ve allocated the risk b/w buyer and seller as reflected in the price
	Mistake Denied French Law Case of 10 May 1988 - Sale of land: couldn’t do what they had wanted to do	- But there was an ‘as is’ type clause, so no recovery
	Mistake Denied French Law Case of 23 Sept. 1988 - Buyer of a used car discovered the car was from a different year than stated in the K	- Court refused to annul the K - Ct: error as to the year of fabrication would not justify annulling the K unless buyer proved that it concerned a substantial characteristic of the object (buyer did not)
	Mistake Denied German Law Case of 11 March 1932 - Oil panting case - Indicated to buyer to be an original painting a Jacob Ruysdael ; turned out it wasn’t	- “One cannot speak of a defect in the painting and warranty, nor of an error and voidability in a speculative acquisition where the seller does not give any guarantee, but perhaps expressly refused to do so, and the buyer himself takes into account that the picture can be by someone other than the designated master and buys it only in hopes that the opinion of the parties will prove to be correct.”
	Fairness in Price Term English Law	- 3 req’s: (1) easily exploitable, (2) bargain unfair, (3) no advice of professional - Eng says they have doctrine, but Gordley not sure  here, seems like she didn’t understand the nature of the transaction not that she was gauged on the price term
	Fairness of Price Term U.S. Law	UCC §2-302: Unconscionable Contract or Clause (p. 470)– rare for Cts to give relief! (1) If the Ct as a matter of law find K or any clause of the K to be unconscionable at the time it was made, Ct may refuse to enforce the K…. R2nd Contracts §208 (p. 470)If a contract or term thereof is unconscionable at the time the contract is made a court may refuse to enforce the contract, or may enforce the remainder of the contract without the unconscionable term, or may so limit the application of any unconscionable term as to avoid any unconscionable result. - Substantive Unconscionability : $ unfair - Procedural Unconscionability: element of weakness – something you can exploit
	Fairness French Law	Art. 1118 Art. 1313 p. 481 – no relief except where sell land < 5/12 fair price, but Art. 1674 in other cases, French cts give relief, but call it something else! Art. 1675
	Fairness French Cases	Case of 27 April 1887 - Fleisher on the Steamship Rolf – ship stuck on beach; captain agreed to pay lots of $$ for tug - Ct: too much! Ct voids for duress! - G: this is WRONG! The defendant is not the source of the danger! Case of 27 Jan. 1919 - Caretakers demand $$ to continue care of old man - Ct: void for duress - G: wrong! They didn’t create the danger! Case of 2 June 1930 - P agrees to pay 60,000 francs in settlement for 1500 francs - Ct: fraud! Void! Certain he would never have agreed to such a stupid thing! - G: WRONG! No lie here! Case of 22 Jan. 1953 - S sells painting for $250k; experts valued at $40k - Ct: void - fraud! S knows they are worthless - G: this is closer to the “lie” but is it that S is willing to part with the paintings only for $250 or is he trying to say he is appraising it at $250K? - Ct on sounder ground here Case of 14 Oct. 1931 - K to demolish cement; turns out it’s a lot harder then they thought, so more$$ - Ct: K void for mistake! Case of 4 May 1956 - Villa on the coast – expensive lease  Ct: lessee is entitled to assume it’s a good property - Ct: void – mistake!
	Fairness German Law §138	: Transaction Contrary to Good Morals (1) a legal transaction that violates good morals is void (2) void when person takes adv. of distressed situation, inexperience, etc. to obtain financial advantages for himself that are obviously disproportionate to performance given in return
	Fairness of Auxiliary Terms-US Law Weaver v. Amoco - K – if AmOil is negligent & damages gas station, not liable	- Need Sub & Proc unconscionability (here: proc uneducated & doesn’t know about clause & couldn’t understand it w/o lawyer) - Economic argument  place burden on party that is best able to bear the risk! - Test: (1) knowledge of risk (2) controlling risk (3) insurance/self-ins - Here: AmOil could better predict odds of negligence; has more info & control re: employees & their records; Amoco can better bear cost/risk of 1 filling station blowing upSo here Amoco better to bear risk. - Rule: if wrong party ends up bearing the risk, something’s wrong  substantive uncons. - So – look if wrong party is bearing the risk (subst), then look for proc.
	European Law UK, FRA, GER EC Directive on Unfair Terms in Consumer Contracts (p.488)	- Limited to consumer transactions & non-negotiated terms - Art 3(1) – if unfair, will not stand - Annex (p.490) – indicative list of unfair terms: (a) ltd liability for personal injury)  G: this is redundant! Product liability already covers this! (b) Limiting liability for non-perf (m) S determines conformity to the K (c) free way out (ex: no consideration in US) – repudiate K (f)(g) free way in – repudiate K (n)(j)(k)(l) – unilateral changes in K (b)(m)(c)(f)(g) – you think we have a K & you’re locked in, but I’m not! - Generally, these are things that you couldn’t pay someone enough to take these risks - Squirrely terms: (n) re: agents – if A makes representation, Co. must stand behind it (i) no real opportunity of becoming acquainted w/ terms (G: how can this possibly work? All consumer K have 1-sided terms!) (p) assignment – like G’s stucco artist that paid the kid to do the work (q) making consumers go to arbitration (take away right to court)
	Impossibility & Force Majeure Common Law Taylor v. Caldwell - Action for breach of K where Δ agreed to rent music hall to π for purpose of having 4 concerts; music hall burned down; π sued for breach	- Common Law Rule: no liability if performance is impossible  works whether impossibility is initial or subsequent (but must be objectively impossible!) - Issue: Whether, under these circumstances, the loss is to fall upon the Ds. - Condition of K that performance be possible – if I promise to build you something & I die, you cant sue! - Here: Ct finds that the parties K’d on the basis of the continued existence of the Music Hall at the time when concerts were to be given; that being essential to their performance. - Judgment for Δ
	Impossibility and Fore Majeure French Law Negligence	Art. 1137- negligence  liable - Whether the agreement is for the benefit of one of the parties or for their common benefit, the obligation to take care so that a thing will be preserved, requires the person obligated to use the care of a reasonable person [literally, of a good father of a family] - This obligation is more or less extensive for certain Ks whose effects in this regard are explained under the titles that concern them - makes liability depend upon exercise of care (fault principle) - Limited scope – only seems to be talking about only deposit situations. - Seems to suggest that in some Ks, at least, a party who fails to perform is liable only if he is at vault in the ordinary sense of the word
	Fore Majeure French Law	- Seems to be very general, and if it were the dominant principle to follow, contract law would be “liability until proof of excuse by force beyond your control.” - The person who owes a performances shall be ordered to pay damages for non-performance of the obligation or for delay in performing it whenever he fails to establish that non-performance is due to an external cause (cause etrangere) that cannot be imputed to him provided, moreover, that there is no bad faith on his part. - No damages are due when the person who owes a performance was prevented from giving or doing what he had bound himself to do, or was caused to do what he was obligated not to do, by an irresistible force (force majeure) or an utter accident (cas fortuit)
	Roman law - 20th Century  2 kinds of K:	- Best efforts K (K with doctor/lawyer) - Results K (K to deliver goods) - Re: results K  strict liability  if I don’t deliver by X, I’m liable - Practically the same outcome as common law!  liability unless force majeure - In int’l K, Cts & arbs will read this into the K - Force majeure = objectively impossible - No Δ if suppliers run off or there is a strike, but if the event is weird enough – K off!
	German Law Impossbility or Force Majuere	- Only liable for FAULT - But cases in Germany come out in much the same way as in France, England, and the US - Ex: suppliers fail & now I cant get component parts to satisfy my K - US: liable (not impossible – someone else can do it) - GER: liable (Fault – picked a crappy supplier) - In every jurisdiction, can’t get out of the K due to strike, run out of $ or suppliers fail - So all jurisdictions sound totally different, but arrive at same result!
	Changed Circumstances English Law	Krell v. Henry - Coronation case – π rented flat to see king’s coronation parade; king fell ill; parade cancelled - Ct: K was frustrated because apartment was rented for 1 purpose: to see the parade - If parade cancelled before K made = mistake; if after K made = changed circumstances - In re: K for particular purpose, this is good law in UK, US & GER, but NOT France! Tsakiroglou v. Noblee (“Suez Canal Case”) - Mere increase in expense is not grounds for frustration - Rerouting ship around Africa was not so onerous as to be called frustration; alternative route was still practicable - Shipper better able to bear the risk + not such a drastic change (same in US Suez Case)
	Changed Circumstances US Law	- Rule: a thing is impossible in legal contemplation when it is not practicable; and a thing is impracticable when it can only be done at an excessive and unreasonable cost - Difference in cost must be great - Ct: even though it is possible to excavate, the cost to do so is just too massive  impracticable to perform Transatlantic Financing Corp v. U.S. (“Suez Canal Case”) - Blockade in Suez Canal; ship had to go around the Cape of Good Hope - Req’s of frustration: unforeseeable + increase in physical difficulty must be very, very large - Here: not enough difference b/w expected cost & actual cost to = impracticability - Ct also seems to think this event could have been foreseeable to shipper NB: note that almost all cases where Ct finds K frustrated are when performance is made impracticable – no cases where K frustrated merely because of $$ increase
	Changed Circumstances German Law 242 and 313	Civil Code §242: - Party owing performance is bound to perform in way required by good faith Civil Code §313: (later added to Code) - If circumstances that formed basis of transaction have seriously changed thereafter & parties would not have entered into the K had they foreseen the change, adaptation of the K can be required - If adaptation of K is not possible/unreasonable, disadvantaged party may withdraw
	Changed Circumstances French Law	French Law - Steadfastly refused to recognize doctrine of changed circumstances - “imprevision”: changed circumstances recognized in admin cts, but not in civil cts
	Specific Performance Common Law	- Default remedy = damages - Only get specific performance if damages are inadequate (i.e. if K for something unique) - Eng: Cts of Common Law & Cts of Equity (2 concurrent cts)  if common law remedy inadequate, go to Ct of Equity
	Specific Performance French Law	Art 1142: - every obligation to do or not to do resolves itself in damages in the event the party who owes performance fails to perform - Damages = sole remedy Art 33: - judge may order astreinte to ensure that his decision is carried out - Works in practice like specific performance – damages increase each day you don’t comply
	Specific Performance French Law	French Law Art 1142: - every obligation to do or not to do resolves itself in damages in the event the party who owes performance fails to perform - Damages = sole remedy Art 33: - judge may order astreinte to ensure that his decision is carried out - Works in practice like specific performance – damages increase each day you don’t comply
	Specific Performance German law	Civil Code §241: - The effect of an obligation is that the person owed performance is entitled to claim performance from the person who owes it - Always entitled to specific performance, but may opt for damages if you want - Practical application: - If fungible goods, π will seek damages - If specific goods, π will opt for specific performance
	Specific Performance Summary	NB: even though each country has completely different rules, in practice all reach same result!! Ex: K for a specific painting - US/Eng: damages not adequate – want the painting – SP allowed - France: get painting by astriente - Germ: SP always available
	Expecation Damages	General Principle: Expectation Damages (Rome, US, Eng, France, Germ) put the victim in same situation as if the K had been performed - US: R 2nd Contracts §347the injured party has a right to damages based on his expectation interest as measured by the loss in the value to him of the other party's performance caused by its failure or deficiency - France: Art. 1149The damages and interest due to the creditor are, in general, to the amount of the loss which he has sustained or of the gain of which he has been deprived - Germ: §249(1) A person who is liable in damages must restore the position that would exist if the circumstance obliging him to pay damages had not occurred.
	Summary of Emotion Damages in Ks	US/UK: no damages for mental distress (excep – Cases where K to produce enjoyment) France: recover Germany: no recovery BUT if injury to health/ loss of salary (vacation), recover
	Recovery for Unforseable Harm in K French Law 1150	French Law Art. 1150 (p.543) One who owes performance is only liable for damages which were foreseen or could have been foreseen at the time of the K unless the failure to perform was due to willful misconduct Case of 11 May 1982 - Roofer case – in fixing the roof with a blowtorch, he burns down the house - Ct: unforeseeable! Not liable! (really??) Case of 29 Dec. 1913 - Checked suitcase with $1000 of merchandise stolen from R/R - Ct: unforeseeable that he would have such expensive stuff in the suitcase
	Recovery for Unforeseable Harm English Law	Hadley v. Baxendale - Mill shaft breaks; gave it to carrier to bring to repair shop; carrier takes way too long & the mill is shut down for extended period; Mill seeks lost profits - Ct: unforeseeable! Koufos v. Czarnikow - Sugar value decreased due to late delivery; Vessel made deviations which breached K and caused delay of 9 days - Ct: foreseeable! Shipper knew that Buyer was going to resell & knew mkt fluctuations in Basrah NB: here, the carrier willfully misdirected shipment – under French law 1150, would have been liable for all damages!
	Recovery for Unforeseeable Harm US Law	R2nd Contracts §351: Unforeseeability & Related Limitations on Damages (p.547) (1) Damages are not recoverable for loss that the party in breach did not have reason to foresee as a probable result of the breach when the K was made (2) Loss may be foreseeable as probable result of a breach bec. it follows from breach (a) in the ordinary course of events or (b) as a result of special circumstances, beyond the ordinary course of events, that the party in breach had reason to know (3) A ct may limit damages for foreseeable loss by excluding recovery for loss of profits….or otherwise if in the circumstances justice so requires…
	Recovery for Unforeseeable Harm German Law	Code §254 re: contributory fault (p.549-550) - Fault rule for K - (2) if cant foresee the damages, could be my fault I didn’t tell you  kind of negligence on my part in preventing you from taking precautions Case of 28 Feb. 1989 - Wrong translation of brochures – had to redo - Ct: unforeseeable! Not expected that they would have printed all the brochures w/o proofreading! Case of 29 Jan. 1969 - Jewelry salesmen has his jewelry stolen from his trunk while parked in hotel lot - Ct: unforeseeable! P didn’t tell anyone about it so they could be more careful – BUT this was an inside job! Silly outcome! Gordley: - Cts are fudging where damages would be astronomical compared to what the K was for (ex: repair of roof << $ of chateau; $ of carriage << lost profits of mill) - Seems that it's not a foreseeability issue, seems to be that the discrepancy in damages controls – Roman emperor was right! (old Roman rule – damages for breach of K must be ≤ 2 times the $ of the K (p. 341)) Gordley: - Cts are fudging where damages would be astronomical compared to what the K was for (ex: repair of roof << $ of chateau; $ of carriage << lost profits of mill) - Seems that it's not a foreseeability issue, seems to be that the discrepancy in damages controls – Roman emperor was right! (old Roman rule – damages for breach of K must be ≤ 2 times the $ of the K (p. 341))
	Offer and Acceptance German Law	Section 145-Binding effect of an offer Any person who offers to another to enter into a contract is bound by the offer, unless he has excluded being bound by it. Section 146-Expiry of an offer An offer expires if a refusal is made to the offeror, or if no acceptance is made to this person in good time in accordance with sections 147 to 149. Section 147-Period for acceptance (1) An offer made to a person who is present may only be accepted immediately. This also applies to an offer made by one person to another using a telephone or another technical facility. (2) An offer made to a person who is absent may be accepted only until the time when the offeror may expect to receive the answer under ordinary circumstances. Section 149 Late receipt of a declaration of acceptance If a declaration of acceptance received late by the offeror was sent in such a way that it would have reached him in time if it had been forwarded in the usual way, and if the offeror ought to have recognised this, he must notify the acceptor of the delay after receipt of the declaration without undue delay, unless this has already been done. If he delays the sending of the notification, the acceptance is deemed not to be late.

Share This Flashcard Set

Set the Language

Related Flashcards

Comparative Private Law

Add to Folders

Upgrade to Cram Premium

Card Range To Study

215 Cards in this Set