Abstract

http://ssrn.com/abstract=2476818
 


 



Trespass Revisited: Against the Keep-Off Theory of Property and for Owner-Responsibility


Avihay Dorfman


Tel Aviv University Faculty of Law

Assaf Jacob


The Interdisciplinary Center Radziner School of Law

August 6, 2014

University of Toronto Law Journal (2015 Forthcoming)

Abstract:     
The conventional wisdom has it that a property owner assumes virtually no responsibility for guiding others in fulfilling their duties not to trespass on the former's property. In other words, the entire risk of making an unauthorized use of the property in question rests upon the duty-holders. This view is best captured by the Keep-Off picture of property, according to which the content of the duty in question is that of excluding oneself from a thing that is not one's own. In this article, we argue that this view is mistaken. We advance conceptual, normative, and doctrinal arguments to show that this account runs afoul of the actual workings of the tort in question. A more precise account of trespass to land will reveal that the tort gives rise to a hybrid regime of tort liability: one which combines considerations of fault along with those of strict liability. On the proposed account, therefore, an owner does assume some responsibility for guiding others in fulfilling the duty they owe the former.

Number of Pages in PDF File: 47

Keywords: trespass, strict liability, fault, responsibility, property

JEL Classification: K11, K13

Accepted Paper Series


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Date posted: August 7, 2014  

Suggested Citation

Dorfman, Avihay and Jacob, Assaf, Trespass Revisited: Against the Keep-Off Theory of Property and for Owner-Responsibility (August 6, 2014). University of Toronto Law Journal (2015 Forthcoming). Available at SSRN: http://ssrn.com/abstract=2476818

Contact Information

Avihay Dorfman (Contact Author)
Tel Aviv University Faculty of Law ( email )
Ramat Aviv
Tel Aviv 69978, IL
Israel
972.3.6407279 (Phone)
Assaf M. Jacob
The Interdisciplinary Center Radziner School of Law ( email )
P.O. Box 167
Herzliya, 46150
Israel
972-9-9527280 (Phone)
972-9-9568605 (Fax)
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