Robert D. Cooter and Ariel Porat
- Published in print:
- 2014
- Published Online:
- October 2017
- ISBN:
- 9780691151595
- eISBN:
- 9781400850396
- Item type:
- book
- Publisher:
- Princeton University Press
- DOI:
- 10.23943/princeton/9780691151595.001.0001
- Subject:
- Law, Comparative Law
Lawyers, judges, and scholars have long debated whether incentives in tort, contract, and restitution law effectively promote the welfare of society. If these incentives were ideal, tort law would ...
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Lawyers, judges, and scholars have long debated whether incentives in tort, contract, and restitution law effectively promote the welfare of society. If these incentives were ideal, tort law would reduce the cost and frequency of accidents, contract law would lubricate transactions, and restitution law would encourage people to benefit others. Unfortunately, the incentives in these laws lead to too many injuries, too little contractual cooperation, and too few unrequested benefits. This book explains how law might better serve the social good. In tort law, the book proposes that all foreseeable risks should be included when setting standards of care and awarding damages. Failure to do so causes accidents that better legal incentives would avoid. In contract law, the book shows that making a promise often causes the person who receives it to change behavior and undermine the cooperation between the parties. It recommends several solutions, including a novel contract called “anti-insurance.” In restitution law, people who convey unrequested benefits to others are seldom entitled to compensation. Restitution law should compensate them more than it currently does, so that they will provide more unrequested benefits. In these three areas of law, the book demonstrates that better law can promote the well-being of people by providing better incentives for the private regulation of conduct.Less
Lawyers, judges, and scholars have long debated whether incentives in tort, contract, and restitution law effectively promote the welfare of society. If these incentives were ideal, tort law would reduce the cost and frequency of accidents, contract law would lubricate transactions, and restitution law would encourage people to benefit others. Unfortunately, the incentives in these laws lead to too many injuries, too little contractual cooperation, and too few unrequested benefits. This book explains how law might better serve the social good. In tort law, the book proposes that all foreseeable risks should be included when setting standards of care and awarding damages. Failure to do so causes accidents that better legal incentives would avoid. In contract law, the book shows that making a promise often causes the person who receives it to change behavior and undermine the cooperation between the parties. It recommends several solutions, including a novel contract called “anti-insurance.” In restitution law, people who convey unrequested benefits to others are seldom entitled to compensation. Restitution law should compensate them more than it currently does, so that they will provide more unrequested benefits. In these three areas of law, the book demonstrates that better law can promote the well-being of people by providing better incentives for the private regulation of conduct.
Robert D. Cooter and Ariel Porat
- Published in print:
- 2014
- Published Online:
- October 2017
- ISBN:
- 9780691151595
- eISBN:
- 9781400850396
- Item type:
- chapter
- Publisher:
- Princeton University Press
- DOI:
- 10.23943/princeton/9780691151595.003.0010
- Subject:
- Law, Comparative Law
This chapter introduces what it calls the “public goods theory of restitution,” which applies when one person's act creates unrequested benefits for two or more people. It begins with examples that ...
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This chapter introduces what it calls the “public goods theory of restitution,” which applies when one person's act creates unrequested benefits for two or more people. It begins with examples that illustrate how the benefactor's act conveys a benefit to everyone in a group, noting that restitution law encourages the private production of public goods in special cases by holding the recipients liable for unrequested benefits. It then considers unrequested benefits under prevailing law and a private production of public goods theory before developing the case for an expanded duty of restitution. It advocates expanding the right to restitution to increase the private supply of public goods and argues that liability for receiving unrequested benefits should be far narrower than liability for causing harm.Less
This chapter introduces what it calls the “public goods theory of restitution,” which applies when one person's act creates unrequested benefits for two or more people. It begins with examples that illustrate how the benefactor's act conveys a benefit to everyone in a group, noting that restitution law encourages the private production of public goods in special cases by holding the recipients liable for unrequested benefits. It then considers unrequested benefits under prevailing law and a private production of public goods theory before developing the case for an expanded duty of restitution. It advocates expanding the right to restitution to increase the private supply of public goods and argues that liability for receiving unrequested benefits should be far narrower than liability for causing harm.
Robert D. Cooter and Ariel Porat
- Published in print:
- 2014
- Published Online:
- October 2017
- ISBN:
- 9780691151595
- eISBN:
- 9781400850396
- Item type:
- chapter
- Publisher:
- Princeton University Press
- DOI:
- 10.23943/princeton/9780691151595.003.0013
- Subject:
- Law, Comparative Law
This book has advanced three central claims, each related to a different branch of private law. First, to achieve efficiency under negligence law, all foreseeable risks should be included when ...
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This book has advanced three central claims, each related to a different branch of private law. First, to achieve efficiency under negligence law, all foreseeable risks should be included when setting standards of care and awarding damages. Second, to achieve efficient contracts, the law should respond more to the promisee's incentives for cooperation and reliance. Third, the law should encourage unrequested benefits by making the beneficiaries compensate the benefactors more often, and by reducing the liability of injurers and breaching parties who externalize benefits. In support of these claims, the book has introduced novel principles such as total liability for excessive harm, anti-insurance, decreasing liability contracts, and the public goods theory of restitution. In conclusion, the book proposes three main legal reforms to improve private law in terms of promoting social welfare, such as removing misalignments in tort law or reducing the benefactor's liability for accidents.Less
This book has advanced three central claims, each related to a different branch of private law. First, to achieve efficiency under negligence law, all foreseeable risks should be included when setting standards of care and awarding damages. Second, to achieve efficient contracts, the law should respond more to the promisee's incentives for cooperation and reliance. Third, the law should encourage unrequested benefits by making the beneficiaries compensate the benefactors more often, and by reducing the liability of injurers and breaching parties who externalize benefits. In support of these claims, the book has introduced novel principles such as total liability for excessive harm, anti-insurance, decreasing liability contracts, and the public goods theory of restitution. In conclusion, the book proposes three main legal reforms to improve private law in terms of promoting social welfare, such as removing misalignments in tort law or reducing the benefactor's liability for accidents.
Lavinia Stan and Lucian Turcescu
- Published in print:
- 2007
- Published Online:
- September 2007
- ISBN:
- 9780195308532
- eISBN:
- 9780199785728
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195308532.003.0005
- Subject:
- Religion, Religion and Society
In 1989 the Romanian state was called to return Roman and Greek Catholic property confiscated by communist authorities and transferred to the Orthodox Church. The Orthodox Church's refusal to return ...
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In 1989 the Romanian state was called to return Roman and Greek Catholic property confiscated by communist authorities and transferred to the Orthodox Church. The Orthodox Church's refusal to return disputed churches hampered the Orthodox‐Catholic dialogue, both locally and internationally. The property restitution case study illustrates the dilemma of a state torn between its need to maintain popularity with the Orthodox electorate and its desire to meet standards of religious freedom required for accession to the European Union. We analyze the different arguments proposed by the Orthodox, the Greek Catholics, and the Romanian state for and against restitution.Less
In 1989 the Romanian state was called to return Roman and Greek Catholic property confiscated by communist authorities and transferred to the Orthodox Church. The Orthodox Church's refusal to return disputed churches hampered the Orthodox‐Catholic dialogue, both locally and internationally. The property restitution case study illustrates the dilemma of a state torn between its need to maintain popularity with the Orthodox electorate and its desire to meet standards of religious freedom required for accession to the European Union. We analyze the different arguments proposed by the Orthodox, the Greek Catholics, and the Romanian state for and against restitution.
Randy E. Barnett
- Published in print:
- 2000
- Published Online:
- November 2003
- ISBN:
- 9780198297291
- eISBN:
- 9780191598777
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0198297297.001.0001
- Subject:
- Political Science, Political Theory
What is liberty, as opposed to licence, and why is it so important? When people pursue happiness, peace, and prosperity whilst living in society, they confront pervasive problems of knowledge, ...
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What is liberty, as opposed to licence, and why is it so important? When people pursue happiness, peace, and prosperity whilst living in society, they confront pervasive problems of knowledge, interest, and power. These problems are dealt with by ensuring the liberty of the people to pursue their own ends, but addressing these problems also requires that liberty be structured by certain rights and procedures associated with the classical liberal conception of justice and the rule of law. This book identifies the content of natural rights—several property, freedom of contract, first possession, restitution, and self defence—and explains how natural rights are distinct from natural law and why these abstract rights require a conventional rule of law to implement. Barnett discusses the practicality of restitution as an alternative to punishment in criminal justice and the constitutional principles that are needed to protect fundamental rights from enforcement error and abuse. After describing how a polycentric legal system would function, he concludes by considering communitarian objections and those based on retributive and distributive justice.Less
What is liberty, as opposed to licence, and why is it so important? When people pursue happiness, peace, and prosperity whilst living in society, they confront pervasive problems of knowledge, interest, and power. These problems are dealt with by ensuring the liberty of the people to pursue their own ends, but addressing these problems also requires that liberty be structured by certain rights and procedures associated with the classical liberal conception of justice and the rule of law. This book identifies the content of natural rights—several property, freedom of contract, first possession, restitution, and self defence—and explains how natural rights are distinct from natural law and why these abstract rights require a conventional rule of law to implement. Barnett discusses the practicality of restitution as an alternative to punishment in criminal justice and the constitutional principles that are needed to protect fundamental rights from enforcement error and abuse. After describing how a polycentric legal system would function, he concludes by considering communitarian objections and those based on retributive and distributive justice.
Randy E. Barnett
- Published in print:
- 2000
- Published Online:
- November 2003
- ISBN:
- 9780198297291
- eISBN:
- 9780191598777
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0198297297.003.0011
- Subject:
- Political Science, Political Theory
In a legal system based on pure restitution and self‐defence combined with enhanced reliance on several property and freedom of contract, the ability to effectively prevent crime rather than deter ...
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In a legal system based on pure restitution and self‐defence combined with enhanced reliance on several property and freedom of contract, the ability to effectively prevent crime rather than deter its commission by ex‐ post punishment is greatly enhanced. Unlike public property, several property creates incentives to invest in crime prevention and the ability to exclude dangerous persons before they can act. Freedom of contract makes possible far more responsive law enforcement agencies than can be provided by a coercive monopoly. While pure restitution will not ‘deter’ all criminal behaviour, it is a fallacy to believe that increased deterrence invariably or logically follows, increasing the severity of punishment. Restitution increases the incentives to catch and prosecute defendants, thus increasing the rate at which legal sanctions are imposed.Less
In a legal system based on pure restitution and self‐defence combined with enhanced reliance on several property and freedom of contract, the ability to effectively prevent crime rather than deter its commission by ex‐ post punishment is greatly enhanced. Unlike public property, several property creates incentives to invest in crime prevention and the ability to exclude dangerous persons before they can act. Freedom of contract makes possible far more responsive law enforcement agencies than can be provided by a coercive monopoly. While pure restitution will not ‘deter’ all criminal behaviour, it is a fallacy to believe that increased deterrence invariably or logically follows, increasing the severity of punishment. Restitution increases the incentives to catch and prosecute defendants, thus increasing the rate at which legal sanctions are imposed.
Randy E. Barnett
- Published in print:
- 2000
- Published Online:
- November 2003
- ISBN:
- 9780198297291
- eISBN:
- 9780191598777
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0198297297.003.0008
- Subject:
- Political Science, Political Theory
The incentive problem concerns ensuring that persons have an adequate incentive to make choices reflecting the knowledge to which they have access and to discover new information. This problem is ...
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The incentive problem concerns ensuring that persons have an adequate incentive to make choices reflecting the knowledge to which they have access and to discover new information. This problem is addressed by the rights of first possession, freedom from contract, and freedom to contract. The rule of law also addresses the incentive problem by providing a set of legal precepts that do not change too frequently and can therefore be relied upon. To preserve the incentives created by justice and the rule of law, takings must be compensated by requiring the perpetrator of the transfer to make restitution to the victim. The incentive problem created by public goods is less serious than some suppose and free riding can usually be addressed in a number of ways without the need for nonconsensual rights transfers.Less
The incentive problem concerns ensuring that persons have an adequate incentive to make choices reflecting the knowledge to which they have access and to discover new information. This problem is addressed by the rights of first possession, freedom from contract, and freedom to contract. The rule of law also addresses the incentive problem by providing a set of legal precepts that do not change too frequently and can therefore be relied upon. To preserve the incentives created by justice and the rule of law, takings must be compensated by requiring the perpetrator of the transfer to make restitution to the victim. The incentive problem created by public goods is less serious than some suppose and free riding can usually be addressed in a number of ways without the need for nonconsensual rights transfers.
Randy E. Barnett
- Published in print:
- 2000
- Published Online:
- November 2003
- ISBN:
- 9780198297291
- eISBN:
- 9780191598777
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0198297297.003.0009
- Subject:
- Political Science, Political Theory
The compliance problem concerns conduct that conflicts with the rights that define justice or the requirements of the rule of law; it is the need to close the gap between the conduct that justice and ...
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The compliance problem concerns conduct that conflicts with the rights that define justice or the requirements of the rule of law; it is the need to close the gap between the conduct that justice and the rule of law requires and what people perceive to be in their interest to do. Though some perceptions of conflict between justice and interest are illusory and can be resolved by a better appreciation of one's true interest or the limits of justice, genuine gaps between justice and interest can be caused by emergency conditions or by the desire for pecuniary gain or psychological gain. Usually, the gap between justice and interest is closed by the processes of socialization. Residual gaps between justice and interest can be ameliorated by the use or threatened use of force or power in advance of, during (by self‐defence), or after a rights violation. How a system of restitution could be implemented as an alternative to punishment is examined.Less
The compliance problem concerns conduct that conflicts with the rights that define justice or the requirements of the rule of law; it is the need to close the gap between the conduct that justice and the rule of law requires and what people perceive to be in their interest to do. Though some perceptions of conflict between justice and interest are illusory and can be resolved by a better appreciation of one's true interest or the limits of justice, genuine gaps between justice and interest can be caused by emergency conditions or by the desire for pecuniary gain or psychological gain. Usually, the gap between justice and interest is closed by the processes of socialization. Residual gaps between justice and interest can be ameliorated by the use or threatened use of force or power in advance of, during (by self‐defence), or after a rights violation. How a system of restitution could be implemented as an alternative to punishment is examined.
Rana Mitter
- Published in print:
- 2003
- Published Online:
- November 2003
- ISBN:
- 9780199251209
- eISBN:
- 9780191599293
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0199251207.003.0009
- Subject:
- Political Science, International Relations and Politics
Mitter's study argues that until the late Qing, concepts of international order and justice were alien to China's imperial rulers. Subsequently, however, in the nineteenth and early twentieth ...
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Mitter's study argues that until the late Qing, concepts of international order and justice were alien to China's imperial rulers. Subsequently, however, in the nineteenth and early twentieth centuries, China perceived itself to be the victim in an unjust world of aggressive, powerful, Western states. Contemporary Chinese perceptions of a just international order have been shaped by such past experiences and encompass a strong element of restitution. Its justice claims start with the Chinese state itself rather than with the needs of a broader global community.Less
Mitter's study argues that until the late Qing, concepts of international order and justice were alien to China's imperial rulers. Subsequently, however, in the nineteenth and early twentieth centuries, China perceived itself to be the victim in an unjust world of aggressive, powerful, Western states. Contemporary Chinese perceptions of a just international order have been shaped by such past experiences and encompass a strong element of restitution. Its justice claims start with the Chinese state itself rather than with the needs of a broader global community.
Nikolai V. Brilliantov and Thorsten Pöschel
- Published in print:
- 2004
- Published Online:
- January 2010
- ISBN:
- 9780198530381
- eISBN:
- 9780191713057
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198530381.001.0001
- Subject:
- Physics, Condensed Matter Physics / Materials
Kinetic Theory of Granular Gases provides an introduction to the rapidly developing theory of dissipative gas dynamics — a theory which has mainly evolved over the last decade. The book ...
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Kinetic Theory of Granular Gases provides an introduction to the rapidly developing theory of dissipative gas dynamics — a theory which has mainly evolved over the last decade. The book is aimed at readers from the advanced undergraduate level upwards and leads on to the present state of research. Throughout, special emphasis is put on a microscopically consistent description of pairwise particle collisions which leads to an impact-velocity-dependent coefficient of restitution. The description of the many-particle system, based on the Boltzmann equation, starts with the derivation of the velocity distribution function, followed by the investigation of self-diffusion and Brownian motion. Using hydrodynamical methods, transport processes and self-organized structure formation are studied. An appendix gives a brief introduction to event-driven molecular dynamics. A second appendix describes a novel mathematical technique for derivation of kinetic properties, which allows for the application of computer algebra. The text is self-contained, requiring no mathematical or physical knowledge beyond that of standard physics undergraduate level. The material is adequate for a one-semester course and contains chapter summaries as well as exercises with detailed solutions. The molecular dynamics and computer-algebra programs can be downloaded from a companion web page.Less
Kinetic Theory of Granular Gases provides an introduction to the rapidly developing theory of dissipative gas dynamics — a theory which has mainly evolved over the last decade. The book is aimed at readers from the advanced undergraduate level upwards and leads on to the present state of research. Throughout, special emphasis is put on a microscopically consistent description of pairwise particle collisions which leads to an impact-velocity-dependent coefficient of restitution. The description of the many-particle system, based on the Boltzmann equation, starts with the derivation of the velocity distribution function, followed by the investigation of self-diffusion and Brownian motion. Using hydrodynamical methods, transport processes and self-organized structure formation are studied. An appendix gives a brief introduction to event-driven molecular dynamics. A second appendix describes a novel mathematical technique for derivation of kinetic properties, which allows for the application of computer algebra. The text is self-contained, requiring no mathematical or physical knowledge beyond that of standard physics undergraduate level. The material is adequate for a one-semester course and contains chapter summaries as well as exercises with detailed solutions. The molecular dynamics and computer-algebra programs can be downloaded from a companion web page.
Johan F. M. Swinnen
- Published in print:
- 2006
- Published Online:
- May 2006
- ISBN:
- 9780199288915
- eISBN:
- 9780191603518
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0199288917.003.0009
- Subject:
- Economics and Finance, Development, Growth, and Environmental
This chapter explains why, when, and how transition countries chose to introduce property rights reforms and restructure their farms. It explains why China opted for the household responsibility ...
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This chapter explains why, when, and how transition countries chose to introduce property rights reforms and restructure their farms. It explains why China opted for the household responsibility system, why land was restored to former owners in Central and Eastern Europe, and why land in the former Soviet Union was mostly distributed in shares and soft budgets.Less
This chapter explains why, when, and how transition countries chose to introduce property rights reforms and restructure their farms. It explains why China opted for the household responsibility system, why land was restored to former owners in Central and Eastern Europe, and why land in the former Soviet Union was mostly distributed in shares and soft budgets.
Elizabeth Cooke
- Published in print:
- 2000
- Published Online:
- January 2010
- ISBN:
- 9780198262220
- eISBN:
- 9780191714412
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198262220.001.0001
- Subject:
- Law, Law of Obligations
The law of estoppel by representation concerns those critical circumstances when the law will not allow a person to go back on what he has previously said. It might also be called the law of ...
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The law of estoppel by representation concerns those critical circumstances when the law will not allow a person to go back on what he has previously said. It might also be called the law of consistency. It has developed, from very simple origins, into a complex of ideas, which have proved to be of great practical importance in areas as diverse as land law, contract law, and family law. Development continues, as does the interaction with other areas; changes in recent years in the law's conception of contract, and in its approach to problems of family property, as well as the growth of the law of restitution, have all had their impact on estoppel. This book explores, explains, and criticises the law of estoppel; presents a logical structure for it; and in particular analyses the concept of ‘unconscionability’, which is now seen as a basis for the law.Less
The law of estoppel by representation concerns those critical circumstances when the law will not allow a person to go back on what he has previously said. It might also be called the law of consistency. It has developed, from very simple origins, into a complex of ideas, which have proved to be of great practical importance in areas as diverse as land law, contract law, and family law. Development continues, as does the interaction with other areas; changes in recent years in the law's conception of contract, and in its approach to problems of family property, as well as the growth of the law of restitution, have all had their impact on estoppel. This book explores, explains, and criticises the law of estoppel; presents a logical structure for it; and in particular analyses the concept of ‘unconscionability’, which is now seen as a basis for the law.
Nikolai V. Brilliantov and Thorsten Pöschel
- Published in print:
- 2004
- Published Online:
- January 2010
- ISBN:
- 9780198530381
- eISBN:
- 9780191713057
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198530381.003.0023
- Subject:
- Physics, Condensed Matter Physics / Materials
This chapter discusses constant coefficient of restitution and granular gases of viscoelastic particles.
This chapter discusses constant coefficient of restitution and granular gases of viscoelastic particles.
Nikolai V. Brilliantov and Thorsten Pöschel
- Published in print:
- 2004
- Published Online:
- January 2010
- ISBN:
- 9780198530381
- eISBN:
- 9780191713057
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198530381.003.0002
- Subject:
- Physics, Condensed Matter Physics / Materials
This chapter introduces the notation to describe particle collisions using the coefficient of restitution. It raises the question of whether the coefficient of restitution is adequate to describe ...
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This chapter introduces the notation to describe particle collisions using the coefficient of restitution. It raises the question of whether the coefficient of restitution is adequate to describe particle collisions in granular gas. It considers the motion of two colliding spheres.Less
This chapter introduces the notation to describe particle collisions using the coefficient of restitution. It raises the question of whether the coefficient of restitution is adequate to describe particle collisions in granular gas. It considers the motion of two colliding spheres.
Robert D. Cooter and Ariel Porat
- Published in print:
- 2014
- Published Online:
- October 2017
- ISBN:
- 9780691151595
- eISBN:
- 9781400850396
- Item type:
- chapter
- Publisher:
- Princeton University Press
- DOI:
- 10.23943/princeton/9780691151595.003.0001
- Subject:
- Law, Comparative Law
This book examines how the law of torts, contracts, and restitution can be improved by showing how private law reduces the cost of accidents, lubricates bargains, and encourages unrequested benefits. ...
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This book examines how the law of torts, contracts, and restitution can be improved by showing how private law reduces the cost of accidents, lubricates bargains, and encourages unrequested benefits. It considers the two pervasive rules of tort law that provide incentives for actors to reduce accident costs: strict liability and negligence. It also explains how contract law achieves effiency through the remedy of damages and how restitution law allows benefactors to recover gains that their beneficiaries wrongfully obtained from them. The book makes three central claims: misalignments in tort law should be removed; in contract law, promisee's incentives should be improved; and the law should recognize some right of compensation for those who produce unrequested benefits. Each claim is based on the desire to reform private law and to make it more effective in promoting social welfare.Less
This book examines how the law of torts, contracts, and restitution can be improved by showing how private law reduces the cost of accidents, lubricates bargains, and encourages unrequested benefits. It considers the two pervasive rules of tort law that provide incentives for actors to reduce accident costs: strict liability and negligence. It also explains how contract law achieves effiency through the remedy of damages and how restitution law allows benefactors to recover gains that their beneficiaries wrongfully obtained from them. The book makes three central claims: misalignments in tort law should be removed; in contract law, promisee's incentives should be improved; and the law should recognize some right of compensation for those who produce unrequested benefits. Each claim is based on the desire to reform private law and to make it more effective in promoting social welfare.
Gerhard Dannemann
- Published in print:
- 2009
- Published Online:
- September 2009
- ISBN:
- 9780199533114
- eISBN:
- 9780191705526
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199533114.003.0001
- Subject:
- Law, Comparative Law, Law of Obligations
This introductory chapter begins with a discussion of the long tradition of unjust enrichment in English law and the advantages of taking a closer look at the German law of unjustified enrichment ...
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This introductory chapter begins with a discussion of the long tradition of unjust enrichment in English law and the advantages of taking a closer look at the German law of unjustified enrichment from the perspective of English. The chapter then discusses the law of unjustified enrichment within the German Civil Code, the unjustified enrichment model of restitution, and other models of restitution. An overview of the subsequent chapters is presented.Less
This introductory chapter begins with a discussion of the long tradition of unjust enrichment in English law and the advantages of taking a closer look at the German law of unjustified enrichment from the perspective of English. The chapter then discusses the law of unjustified enrichment within the German Civil Code, the unjustified enrichment model of restitution, and other models of restitution. An overview of the subsequent chapters is presented.
Gerhard Dannemann
- Published in print:
- 2009
- Published Online:
- September 2009
- ISBN:
- 9780199533114
- eISBN:
- 9780191705526
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199533114.003.0006
- Subject:
- Law, Comparative Law, Law of Obligations
This chapter discusses gain-based restitution. The measure of liability in unjustified enrichment is governed by §§ 818-820 BGB. The wording of these provisions makes no distinction between different ...
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This chapter discusses gain-based restitution. The measure of liability in unjustified enrichment is governed by §§ 818-820 BGB. The wording of these provisions makes no distinction between different types of unjustified enrichment claims. It is the prevailing belief that §§ 818ff BGB contains a unitary system of consequences of liability which covers all of unjustified enrichment, including both performance and non-performance-based restitution. Even so, strong criticism of this view has been mounted by a number of authors.Less
This chapter discusses gain-based restitution. The measure of liability in unjustified enrichment is governed by §§ 818-820 BGB. The wording of these provisions makes no distinction between different types of unjustified enrichment claims. It is the prevailing belief that §§ 818ff BGB contains a unitary system of consequences of liability which covers all of unjustified enrichment, including both performance and non-performance-based restitution. Even so, strong criticism of this view has been mounted by a number of authors.
Borzu Sabahi
- Published in print:
- 2011
- Published Online:
- September 2011
- ISBN:
- 9780199601189
- eISBN:
- 9780191729201
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199601189.003.0008
- Subject:
- Law, Public International Law, Company and Commercial Law
This chapter discusses ten important findings included in this book. One finding is the dual origin of the modern rules on State responsibility and reparation in both private law notions and public ...
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This chapter discusses ten important findings included in this book. One finding is the dual origin of the modern rules on State responsibility and reparation in both private law notions and public international law, resulting in the objective of reparation of putting the aggrieved party in the ‘hypothetical position’, that would have existed if the unlawful act had not occurred. This objective is mirrored in the modern Chorz ów Factory formula. Restitution, which seeks to re-establish the status quo ante, may need to be accompanied by additional compensation to fully reach the hypothetical position. The amount of compensation, on the other hand, based on the recent jurisprudence, may vary depending on whether the acts complained of were lawful or unlawful. Other important points arising from this study concerning the principles of reparation and compensation are also highlighted in the chapter.Less
This chapter discusses ten important findings included in this book. One finding is the dual origin of the modern rules on State responsibility and reparation in both private law notions and public international law, resulting in the objective of reparation of putting the aggrieved party in the ‘hypothetical position’, that would have existed if the unlawful act had not occurred. This objective is mirrored in the modern Chorz ów Factory formula. Restitution, which seeks to re-establish the status quo ante, may need to be accompanied by additional compensation to fully reach the hypothetical position. The amount of compensation, on the other hand, based on the recent jurisprudence, may vary depending on whether the acts complained of were lawful or unlawful. Other important points arising from this study concerning the principles of reparation and compensation are also highlighted in the chapter.
Michael Lobban
- Published in print:
- 2010
- Published Online:
- May 2010
- ISBN:
- 9780199258826
- eISBN:
- 9780191705168
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199258826.003.0014
- Subject:
- Law, Legal History
This chapter on restitutionary remedies in the 19th century covers waiver of tort, mistaken payments, failure of consideration, money paid, equity, common law, and the redefinition of ...
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This chapter on restitutionary remedies in the 19th century covers waiver of tort, mistaken payments, failure of consideration, money paid, equity, common law, and the redefinition of ‘quasi-contract’.Less
This chapter on restitutionary remedies in the 19th century covers waiver of tort, mistaken payments, failure of consideration, money paid, equity, common law, and the redefinition of ‘quasi-contract’.
Colin Dayan
- Published in print:
- 2011
- Published Online:
- October 2017
- ISBN:
- 9780691070919
- eISBN:
- 9781400838592
- Item type:
- chapter
- Publisher:
- Princeton University Press
- DOI:
- 10.23943/princeton/9780691070919.003.0007
- Subject:
- Literature, Criticism/Theory
This chapter argues that the nature and status of dogs as defined by law are crucial to understanding the limits of restitution and the uneven application of remedy to persons who must answer to or ...
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This chapter argues that the nature and status of dogs as defined by law are crucial to understanding the limits of restitution and the uneven application of remedy to persons who must answer to or reckon with the law. One of the more vexing issues in prosecutions for larceny is whether dogs are subjects of property. If they are not, then their loss through thievery cannot be a cause for restitution in law. Implied here is an obligation to assess a dog's value and usefulness. In this intermediate, imperfect state, they were simply not property as were other chattels, including slaves. It was legally impossible that human chattels occupy a state in between freedom and servitude or between worth and uselessness. If they had no value as instruments of labor or procreation, then they literally had no reason for being and no legal protections against neglect or mutilation, maiming or death.Less
This chapter argues that the nature and status of dogs as defined by law are crucial to understanding the limits of restitution and the uneven application of remedy to persons who must answer to or reckon with the law. One of the more vexing issues in prosecutions for larceny is whether dogs are subjects of property. If they are not, then their loss through thievery cannot be a cause for restitution in law. Implied here is an obligation to assess a dog's value and usefulness. In this intermediate, imperfect state, they were simply not property as were other chattels, including slaves. It was legally impossible that human chattels occupy a state in between freedom and servitude or between worth and uselessness. If they had no value as instruments of labor or procreation, then they literally had no reason for being and no legal protections against neglect or mutilation, maiming or death.
