Comparative Notes on Injunction and Wrongful Risk-Taking

Abstract

This article looks into the role of injunctive relief in European tort law. More specifically, it focuses on the role of injunction in cases concerning wrongful risk-taking behaviour (as opposed to intentional or deliberate wrongdoing). Although there seems to be little practical experience with injunctive relief in cases of wrongful risk-taking behaviour, both the dogmatic and practical implications of allowing or rejecting such claims are formidable. By granting petitions for injunctive relief, courts effectively convert ex post claims for compensation into primary duties to act or omit. By contrast, rejecting injunctive relief renders tort law rules into mere taxes on wrongful behaviour. Which of these two routes is chosen by courts and legislators and how forceful are the arguments used to support either choice?

The aim of this paper is twofold: firstly, to gain a better understanding of the French, German and English legal systems with respect to the role of injunction in tort law and secondly, by drawing on the comparative analysis, to identify the implications of allowing and rejecting injunctive relief for the understanding of tort law. If indeed the role of injunctive relief in cases of wrongful risk-taking behaviour sheds light on tort law’s ends, then perhaps a threefold conception of tort law is in order.

Keywords: Injunction, Ex Post Remedy, Tort of Negligence, Duty of Care, Rights-Based Tort Law

JEL Classification: K13, K41