Date: Mon, 10 Mar 2008 15:23

From: Mårten Schultz

Subject: Remedies for Conversion and Trespass to Goods

In comparative law literature these problems are well-known. (See for instance the questionnaire and responses to the questionnaire in Ulrich Magnus (ed.), Unification of Tort Law: Damages, Den Haag 2001, p 18.) For instance, in German law the cost of the guard seems recoverable, albeit only with a standardized amount. (At least as far as I understand it, see BGHZ 75, 230.) Austrian law, if I understand it correctly, deals with similar issues under negotiorum gestio and the reason for this is exactly the one just mentioned, that the but-for view of causation poses a problem for compensation in torts.

***
The Study Group on a European Civil Code has this general approach to the recovery of costs for preventative measures:

Art. 1:102: Prevention
Where such damage is impending, this Book confers on a person who would suffer the damage a right to prevent it. This right is against a person who would be accountable for the causation of the damage if it occurred.

And:

Article 7:302: Liability for Loss Averting Damage
A person who has reasonably incurred expenditure or suffered other loss in order to prevent an impending damage occurring, or in order to limit the extent or severity of a damage which occurs, has a right to compensation from the person who would have been accountable for the causation of the damage.

The PETL has the following rule:

Art. 2:104.    Preventive expenses
Expenses incurred to prevent threatened damage amount to recoverable damage in so far as reasonably incurred.

***

Mårten Schultz - currently writing a book on the Swedish position on this.

-----Ursprungligt meddelande-----
Från: Vaughan Black
Skickat: den 10 mars 2008 13:00
Till: Barry Allan
Ämne: Re: Remedies For Conversion & Trespass to Goods

Well, some philosophers are quite comfortable with the notion of backward-in-time but-for causation, but so far the law hasn't picked that one up.

It's interesting to compare this claim to one for the capital cost of repair equipment. Say a motorist knocks down a power pole and the utility includes in its cost-of-repair claim something for a portion of the capital cost of the truck and crane used to do the repair job. (Of course the utility has to have trucks and cranes to do normal maintenance, but let's say it can show it has to have extra ones just to fix the poles knocked over by motorists, and its claim is just for a pro rata portion of those extra ones.) An argument for awarding such claims is that if the utility contracted the repair job to the third party and then based its claim against the motorist on the repair fee charged to the utility by the third party, that repair fee might effectively include something for the capital costs of the third party's repair equipment.

One might of course draw a distinction between the capital costs of repair equipment (which might be seen as a real cost of knocking down the pole) and the cost of detection equipment. But equally I can imagine a court declining to draw such a distinction.

<<<< Previous Message  ~  Index  ~  Next Message >>>>>