De Minimis Curat Praetor – Redress for Dispersed Trifle Losses
Journal of Comparative Law, Vol. 4, pp. 171-185, 2009
19 Pages Posted: 15 Mar 2011
Date Written: March 12, 2011
It seems that private law dislikes futilities, if the maxim “de minimis non curat praetor” is anything to go by: neither the courts nor the law should concern themselves with trifles. Indeed, the academic venture of drafting a Common Frame of Reference (CFR) upholds this principle by stating that “trivial damage is to be disregarded.” If the CFR starts from the idea that trifle loss is not considered ‘legally relevant damage’, the question arises how the CFR would deal with losses referred to by the Germans as Streuschäden: trifle, but widely dispersed losses suffered by many individuals as a consequence of tort or breach of contract. Dispersed trifle losses are currently very much scrutinized by EU policymakers in the areas of competition law and consumer law. This makes sense from a policy point of view because what constitutes trifle loss at an individual level may well aggregate into considerable losses to society as a whole, or translate into extensive profits accrued to the wrongdoer.
So, the question is: should the praetor not deal with trifles after all? And if he does, how can he deal with it effectively and efficiently? In this paper, I will first survey the CFR for indications of how the drafters would probably approach this issue. Then, I will discuss the state of affairs in EU policymaking and analyse various recent national initiatives attempting to deal with mass damage and see if these provide viable pathways for dealing with trifles. Subsequently, I will identify issues that need addressing regardless what the preferable pathway may be. I will argue that the issue of dispersed trifles is currently too complex to be dealt with comprehensively at a European level in the near future. Instead, germinating initiatives at state level should be given the chance to blossom or wither. In any event, the CFR should take a less rigid stance on dispersed trifle losses than it seems to be taking now.
Keywords: Trifle Loss, Minor and Dispersed Damage, Scattered and Slight Damage Claims, Common Frame of Reference, Private Enforcement, Disgorgement of Profits
JEL Classification: K12, K13, K41
Suggested Citation: Suggested Citation