Causal Connection between Tort and Loss: The Doctrine of the ‘Lawful Alternative’

RILE Working Paper No. 2010/05

25 Pages Posted: 18 Jun 2010 Last revised: 8 Aug 2010

See all articles by Heico Kerkmeester

Heico Kerkmeester

affiliation not provided to SSRN

Louis T. Visscher

Erasmus University Rotterdam (EUR) - Rotterdam Institute of Law and Economics; Erasmus University Rotterdam (EUR) - Erasmus School of Law

Date Written: February 28, 2010

Abstract

The doctrine of the lawful alternative argues that in tort law it is not sufficient that a condition sine qua non connection exists between an act and the loss. It requires instead that there should be a causal connection between the wrongfulness of the act and the loss. It is regularly argued that this would result in too drastic a curtailment of liability. This objection in our view however rests on an incorrect interpretation of the doctrine. The issue that is the subject of this contribution is familiar in several jurisdictions. It has led to systematic study, which is of importance to understand the correct interpretation of the doctrine. The Law and Economics literature also has spent attention to the concept of the lawful alternative, although it does not seem to have penetrated the mainstream literature yet.

The criterion that has to be applied is that in cases in which the injurer has exercised too little care, it is necessary to examine whether the loss would not have occurred if the injurer would have acted in accordance with written or unwritten norms.

We analyze how the doctrine is applied in the Netherlands, Belgium and Germany. We argue that the doctrine is regularly misinterpreted and that the Law and Economics literature is able to show the correct interpretation.

Keywords: lawful alternative, causation, negligence, tort law

JEL Classification: K13

Suggested Citation

Kerkmeester, Heico and Visscher, Louis T., Causal Connection between Tort and Loss: The Doctrine of the ‘Lawful Alternative’ (February 28, 2010). RILE Working Paper No. 2010/05. Available at SSRN: https://ssrn.com/abstract=1625694 or http://dx.doi.org/10.2139/ssrn.1625694

Heico Kerkmeester

affiliation not provided to SSRN ( email )

Louis T. Visscher (Contact Author)

Erasmus University Rotterdam (EUR) - Rotterdam Institute of Law and Economics ( email )

Burgemeester Oudlaan 50
PO box 1738
Rotterdam, 3000 DR
Netherlands

Erasmus University Rotterdam (EUR) - Erasmus School of Law ( email )

3000 DR Rotterdam
Netherlands
+31 (10) 408 1833 (Phone)
+31 (10) 408 9191 (Fax)

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