CETL DAVID (158 QUESTIONS
AND ANSWERS )
Main methods of statutory interpretation:
1. Textual (literal / grammatical / definitional)
2. Intent (words to be interpreted within the context of what the legislator
intended)
Example: remedial statutes interpreted broadly
3. Purposive (Teleological)
Minor methods of statutory interpretation:
1. Legal historical
2. Legal systematic
Why is tort law political?
Tort law presupposes protected interests (e.g. property law) and is hence
political: it protects interests that are inherently political
Violation of a Statutory Duty:
Tips when interpreting statutes:
o Who is protected? (i.e. eligible to be a claimant) (“personal scope” - ratione
personae)
o From whom are people protects? (i.e. eligible to be a defendant) (“personal
scope” - ratione personae)
o Under what circumstances are they protected? (“material scope” - ratione
materiae)
o From what type of harm is the person protected? (“material scope” ratione
materiae)
Non-Factors / Factors generally not determinative: (judges sometimes use,
and litigants sometimes get away with them, but they are not the strongest)
o The exact manner in which the damage was caused.
o The extent of the damage.
,Tort law v. criminal law
Same origins: an eye for an eye
--> however in the curse of history tort law and criminal law grew apart: now
tort law deals with compensation, and criminal law with punishment
Two types of causation:
Two types of causation:
1. Cause-in-fact: but-for causation (conditio sine qua non)
2. Cause-in-law (called ‘proximate cause’ in UK negligence law):
There exists a point in the chain of causation beyond which the law will not
allow recover based on a combination of law, policy, social expectations,
argumentation, and logic.
Example: Intervening wrongful (intentional, criminal, grossly negligent) acts
of third parties typically will cut off the defendant’s chain of causation
Starting point of tort law
Everyone bears their own losses
-> so if you lose something, it is first of all your loss: then tort law provides
opportunities to make it someone else’s loss
Two big factors for how far cause-in-law will go:
Two big factors for how far cause-in-law will go:
1. The level of culpability of the defendant
- Intentional acts can lead to liability even absent/beyond foreseeability (if
acts were intentional, defandants cannot use the proximate cause argument)
§ Qumn v. Leathen [1901] AC 495, 537.
§ Same for BGH § 826.
§ Negligence => Analysis of foreseeability and probability.
2. Type of Damage Caused
Purposes of tort law:
I. Compensation of wrongs / risks
Compensatory damages
II Prevention / deterrence
,Injunction/ Punitive damages
III. Recognition of injury / wrong
(has become increasingly more important: ex: apology for historical laws, like
slavery)
Nominal damages
IV. Changing policy (tort cases brought up to change policy: Urgenda case)
Weinrib (= a dude)
Weinrib (= a dude) (corrective justice): the link between compensation and
wrongdoing is essential
Compensation: insurance
Wrongdoing: criminal law
-> you want to be paid by the person who injured you: sometimes the
primary purpose of compensation has been met (you get paid by his
insurance), but you feel like this person has thus not been punished because
his insurance just paid for it. However, this person is often not personally
able to pay this large amount of money.
= Important from theoretical point of view: illustrates importance mix of the
insurance company/ government paying one part and the perpetrator
another part
Factual causation Germany:
· Burden is on plaintiff to show an “effective certainty” between the
defendant’s conduct and the infringement of the protected right
· However, the effective certainty standard includes these rules:
o Res Ipsa Loquitor: facts are so clear that court may decide causation is
assumed unless rebutted by the defendant
o Prima Facie case standard: evidence that, unless rebutted, would be
sufficient to prove a fact: up to the defendant to rebut assumption
Reversed standard of proof is used in many situations, including:
o Violation of a Statutory duty + damage within scope
o Breach of a safety duty
o Product liability
o Generally, when defendant had control over the object
, Factual Causation: France
· France does not make a distinction between factual and legal
causation
· Ways to show causation in France (burden on plaintiff):
- Deductive logic: causation must be direct and certain
- A criminal faute = irrefutable proof of causation
- Proof can be replaced by showing defendant’s control over the situation/
object
Accidents at work
Buildings:
Explosions and abnormal events are per se conclusive of liability.
Vehicles: Mere implication enough. No defense of force majeure, so not much
to prove/argue.
US v. Carroll Towing Co. (1947)
The case concerned vessels that were not fastened to their moorings thus
causing damage.
- was it negligent of the owner of the boat not to have a watchman on the
boat?
Court answered with this formula:
B<p*L, then negligence
B = burden of prevention (amount)
p = chance loss occurs
L = Loss (amount)
So if it costs 100 euro to prevent a 10% chance of a loss of 500 euro (= 50
euro), no need to prevent the loss.
In risk liability, the risk bearer calculates internally.
(if there is risk liability, why invest in prevention because you have to pay
anyway)
- as long as it is cheaper to have a watchman there than the costs of a loss
would be (burden of prevention smaller than amount of loss if it happens),
then negligence if the watchman wasn't there.
AND ANSWERS )
Main methods of statutory interpretation:
1. Textual (literal / grammatical / definitional)
2. Intent (words to be interpreted within the context of what the legislator
intended)
Example: remedial statutes interpreted broadly
3. Purposive (Teleological)
Minor methods of statutory interpretation:
1. Legal historical
2. Legal systematic
Why is tort law political?
Tort law presupposes protected interests (e.g. property law) and is hence
political: it protects interests that are inherently political
Violation of a Statutory Duty:
Tips when interpreting statutes:
o Who is protected? (i.e. eligible to be a claimant) (“personal scope” - ratione
personae)
o From whom are people protects? (i.e. eligible to be a defendant) (“personal
scope” - ratione personae)
o Under what circumstances are they protected? (“material scope” - ratione
materiae)
o From what type of harm is the person protected? (“material scope” ratione
materiae)
Non-Factors / Factors generally not determinative: (judges sometimes use,
and litigants sometimes get away with them, but they are not the strongest)
o The exact manner in which the damage was caused.
o The extent of the damage.
,Tort law v. criminal law
Same origins: an eye for an eye
--> however in the curse of history tort law and criminal law grew apart: now
tort law deals with compensation, and criminal law with punishment
Two types of causation:
Two types of causation:
1. Cause-in-fact: but-for causation (conditio sine qua non)
2. Cause-in-law (called ‘proximate cause’ in UK negligence law):
There exists a point in the chain of causation beyond which the law will not
allow recover based on a combination of law, policy, social expectations,
argumentation, and logic.
Example: Intervening wrongful (intentional, criminal, grossly negligent) acts
of third parties typically will cut off the defendant’s chain of causation
Starting point of tort law
Everyone bears their own losses
-> so if you lose something, it is first of all your loss: then tort law provides
opportunities to make it someone else’s loss
Two big factors for how far cause-in-law will go:
Two big factors for how far cause-in-law will go:
1. The level of culpability of the defendant
- Intentional acts can lead to liability even absent/beyond foreseeability (if
acts were intentional, defandants cannot use the proximate cause argument)
§ Qumn v. Leathen [1901] AC 495, 537.
§ Same for BGH § 826.
§ Negligence => Analysis of foreseeability and probability.
2. Type of Damage Caused
Purposes of tort law:
I. Compensation of wrongs / risks
Compensatory damages
II Prevention / deterrence
,Injunction/ Punitive damages
III. Recognition of injury / wrong
(has become increasingly more important: ex: apology for historical laws, like
slavery)
Nominal damages
IV. Changing policy (tort cases brought up to change policy: Urgenda case)
Weinrib (= a dude)
Weinrib (= a dude) (corrective justice): the link between compensation and
wrongdoing is essential
Compensation: insurance
Wrongdoing: criminal law
-> you want to be paid by the person who injured you: sometimes the
primary purpose of compensation has been met (you get paid by his
insurance), but you feel like this person has thus not been punished because
his insurance just paid for it. However, this person is often not personally
able to pay this large amount of money.
= Important from theoretical point of view: illustrates importance mix of the
insurance company/ government paying one part and the perpetrator
another part
Factual causation Germany:
· Burden is on plaintiff to show an “effective certainty” between the
defendant’s conduct and the infringement of the protected right
· However, the effective certainty standard includes these rules:
o Res Ipsa Loquitor: facts are so clear that court may decide causation is
assumed unless rebutted by the defendant
o Prima Facie case standard: evidence that, unless rebutted, would be
sufficient to prove a fact: up to the defendant to rebut assumption
Reversed standard of proof is used in many situations, including:
o Violation of a Statutory duty + damage within scope
o Breach of a safety duty
o Product liability
o Generally, when defendant had control over the object
, Factual Causation: France
· France does not make a distinction between factual and legal
causation
· Ways to show causation in France (burden on plaintiff):
- Deductive logic: causation must be direct and certain
- A criminal faute = irrefutable proof of causation
- Proof can be replaced by showing defendant’s control over the situation/
object
Accidents at work
Buildings:
Explosions and abnormal events are per se conclusive of liability.
Vehicles: Mere implication enough. No defense of force majeure, so not much
to prove/argue.
US v. Carroll Towing Co. (1947)
The case concerned vessels that were not fastened to their moorings thus
causing damage.
- was it negligent of the owner of the boat not to have a watchman on the
boat?
Court answered with this formula:
B<p*L, then negligence
B = burden of prevention (amount)
p = chance loss occurs
L = Loss (amount)
So if it costs 100 euro to prevent a 10% chance of a loss of 500 euro (= 50
euro), no need to prevent the loss.
In risk liability, the risk bearer calculates internally.
(if there is risk liability, why invest in prevention because you have to pay
anyway)
- as long as it is cheaper to have a watchman there than the costs of a loss
would be (burden of prevention smaller than amount of loss if it happens),
then negligence if the watchman wasn't there.
