The Significance of a Civil Wrong

Abstract

Imagine that I commit a civil wrong against you. For example, imagine that I trespass over your property or carelessly injure you. What is the legal effect of my wrong? In particular, how does the wrong change my legal position? More specifically yet, does the wrong give rise to new duties or liabilities on my part? In this essay, I argue that the commission of a civil wrong (or at least the tort and contract breaches that are my focus) has no effect on the wrongdoer’s substantive duties. Its legal significance for wrongdoers lies solely in respect of their liabilities to judicial remedies. But even here, wrongs have a limited effect. Although remedies are typically directed at defendants who have committed wrongs, in most cases, the wrong is not the operative reason for the remedy (though it may be a necessary condition). Most remedies are responses to either right-threats or injustices (each of which is distinct from wrongs). Only a subset of damages awards are responses to wrongs qua wrongs. The subset includes nominal damages, exemplary damages, damages for pain and suffering (mental distress), and a variety of damages awards that I describe compendiously as ‘vindicatory’. For wrongdoers, the sole legal effect of a wrong is that it gives rise, in certain cases, to a liability to these awards. Significantly, the subset of ‘wrong-based’ awards does not include damages for consequential pecuniary losses.

Keywords: remedies, private law, civil wrong, private law theory, damages, tort law, contract

JEL Classification: K10, K20, K13, K12, K41