Article thus provides that loss, whether economic or non-economic, or injury is legally relevant damage and subject to compensation if: a one of the following rules of this Chapter so provides; b the loss or injury results from a violation of a right otherwise conferred by the law; or c the loss or injury results from a violation of an interest worthy of legal protection.
In the latter two cases, it should be considered whether considering the loss or injury legally relevant would be fair and reasonable article From the aspect of fault it is important that two levels of damage as an objective element of tort are distinguishable. The first level is the level of unlawful elements of tort, which focuses mainly on the damage required for the emergence of liability. The second level is the level of the scope of compensation for damage; on this level it is checked whether the damage to the legal right has caused damage subject to compensation under delictual liability causality fulfilling liability.
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It is therefore irrelevant whether and to what extent the tortfeasor wished to cause damage. It also arises from the above that when it comes to prerequisites of liability, it is not the occurrence of damage but whether it was legal rights that were damaged. Whether damage to a relevant legal right led to legally relevant damage needs to be assessed when determining the scope of compensation see also, e. A causal relationship between an act and damage is the third objective element of tort.
The importance of establishing a causal relationship lies in the principle that a person should be liable only for such damage and to such an extent that he or she has caused by his or her acts. In other words, in order for a person to bear civil liability for the damage he or she caused, a causal relationship must be established between his or her unlawful act and the consequence.
Various theories have been developed for establishing a causal relationship. Soviet legal theory did not contain generally recognised criteria of causality. Sometimes, for example, the categories of possibility and actuality by O.
Joffe were occasionally accepted. There was no consensus as to whether liability could be based on only inevitable relationships or it follows from both types of relationships. Causality is established in two stages: at first, the test of the necessary cause or the equivalence theory is applied —— it is asked whether the consequence would have arrived without the act in question the condition sine qua non rule or the but-for test.
This method is applicable especially to active behaviour.
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This method is applied especially in the event of passive behaviour. The author of this paper would also add that if we speak about a causal chain, it is usually in a case of the joint causing of damage. According to this theory, a condition causes a consequence if the condition was a necessary element for the consequence, on the one hand, and sufficient for the consequence, on the other. Therefore, if A and B shoot C and C dies, the act of A or the act of B in a separate capacity is not a necessary condition under the conditio sine qua non rule, but it is under the NESS test.
The act of a third party or the victim himself or herself, or force majeure, may have broken the causality. After the but-for test, causality is assessed using the legal cause test, because using the but-for test only can lead to an inadmissible situation where a compensation claim can be submitted against an unreasonably wide circle of persons.
According to the adequacy theory, an act can be regarded as the cause of a consequence if the act considerably heightens the risk of damage, considering the knowledge of an average person and the circumstances in which the damage occurred. The purpose of provision theory asks whether the purpose of the violated provision or duty was to protect the victim and, if so, to protect him or her against the damage suffered in the particular case.
Civil law dogmatics has not adopted a common position on the issue regarding the relation between adequacy theory and the purpose of provision theory, on the one hand, and unlawfulness and fault, on the other hand. Namely, the issue of whether a person exercised due diligence is often decided on the level of causality, applying the adequacy theory and answering the question of whether the damage was predictable, avoidable and reckonable.
Dividing predictability into objective and subjective predictability still does not completely clarify the issue. However, attempts have been made to distinguish between causality and fault based on objective negligence. In other words, it may be said that the tortfeasor is released from liability if the damage was predictable, but the tortfeasor exercised due diligence e. It should also be kept in mind that various groups of actors are expected to exercise various degrees of diligence: while a judgment on the predictability of damage is entirely objective on the level of causality, a subjective element is added when it comes to fulfilling a duty.
An interesting question is whether a person should be liable for the damage he or she predicted only because his or her personal qualities allowed him or her to do so. For example, if the tortfeasor is a medical specialist and among the best experts in his or her field, the predictability of damage should be assessed not from the viewpoint of an average medical specialist, but from what was predictable for a top specialist in the field. The link between negligence and the purpose of provision theory has been seen in the fact that where liability is based, e.
In addition, the duty must have served the purpose of preventing damage to this very type of legal right. This viewpoint is supported by the fact that a provision can serve the purpose of preventing only the type of damage that is recognisable for the addressee of the provision so that he or she can reasonably take it into account. While as a rule, distinguishing and finding connections between and the prerequisites for delictual liability is of interest only to legal science, in certain cases it also has a practical meaning.
For example, when judging the creation of liability, the issue of whether the person was not at fault in causing the damage or has not even committed an act relevant to tort law can be decisive. In the same way, the choice of which circumstances are to be proved by the victim and which ones by the tortfeasor depends on the distinction between causality and fault.
The principle that whether and to what extent the tortfeasor wished to cause damage is irrelevant is important with respect to the scope of compensation for damage. The author of the paper is convinced that a discussion over the content and meaning of the prerequisites for delictual liability help to better understand the nature of delictual liability and thereby guide the Estonian judicial practice in a single and desired direction. Damage as an objective element of tort and fault The causing of damage is the second of the objective elements of tort.
Causal relationship as an objective element of tort and fault 4. Concept of causal relationship A causal relationship between an act and damage is the third objective element of tort. Distinction between causality and fault Civil law dogmatics has not adopted a common position on the issue regarding the relation between adequacy theory and the purpose of provision theory, on the one hand, and unlawfulness and fault, on the other hand.
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Conclusions While as a rule, distinguishing and finding connections between and the prerequisites for delictual liability is of interest only to legal science, in certain cases it also has a practical meaning. It should be noted that telling between unlawfulness and faulty is not, as a rule, complicated if unlawfulness is induced from damaging an absolutely protected legal benefit e. The issues of distinguishing unlawfulness from fault rise especially seriously where unlawfulness arises from violating general duties.
About distinguishing between unlawfulness and fault see, e. Eine privatrechtliche Untersuchung. Zweite Auflage. Westphalen, etc. Produkthaftungshandbuch: Vertragliche und deliktische Haftung, Strafrecht und Produkt-Haftpflichtversicherung. Textbook on Tort. Buttenworths, London, Dublin, Edinburgh , p.
Passed See C. Analyse der Sorgfaltspflichtverletzung im vertraglichen wie ausservertraglichen Bereich. Eriosa Soviet Civil Law.
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Special Part. Ananyeva et al. General Part. It should be noted that the Civil Code of the Russian Federation the general part of which was passed by the State Duma on 21 October and the special part was passed on 22 December is based on a method of regulation of the structure of tort which is essentially similar to the CC; the same aforementioned four prerequisites can be considered as the prerequisites for delictual liability.
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