Date: Mon, 10 Mar 2008 15:47

From: Michael Jones

Subject: Remedies for Conversion and Trespass to Goods

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.

With respect, this seems slightly odd from a common law perspective. If I fit a lock to my front door to prevent the burglar gaining entry, and the burglar tries the door but finding it locked goes away, can I recover the cost of the lock from the failed burglar? This could be quite a lucrative undertaking, provided I could catch my failed burglar of course.

Michael

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Michael A. Jones
Professor of Common Law
Liverpool Law School
University of Liverpool
Liverpool
L69 3BX

Phone: (0)151 794 2821
Fax: (0)151 794 2829
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From: Mårten Schultz
Sent: Mon 10/03/2008 15:23
Subject: SV: Remedies For Conversion & 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.

  

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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.

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