Wrongfulness as a Necessary Cause of the Losses - Removing an Alleged Difference between Strict Liability and Negligence

Economic Analysis of Law Review, Vol. 2, No. 2, p. 188-203, 2011

RILE Working Paper No. 2011/06

17 Pages Posted: 18 Nov 2011

See all articles by Louis T. Visscher

Louis T. Visscher

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

Date Written: November 17, 2011

Abstract

In several Law and Economics publications in the area of tort law, emphasis is being placed on an alleged difference between strict liability and negligence. Under strict liability, an injurer is liable for the losses of the victim, irrespective of his level of care. Under negligence, the injurer is not liable if he took at least the legally required care level. According to the mainstream Law and Economics literature, this feature of negligence causes a discontinuity in the expected private costs of the injurer. In this paper, I argue that this discontinuity does not exist in reality, because courts, when applying the negligence rule, require that the negligence was a necessary cause of the accident. After all, if the model adopted in economic analyses of tort law does not reflect the essence of this body of law, it will not be able to yield correct predictions or valuable policy recommendations.

Keywords: causation, incomplete compensation, judgment proof, lawful alternative, negligence, strict liability

JEL Classification: K13, K29

Suggested Citation

Visscher, Louis T., Wrongfulness as a Necessary Cause of the Losses - Removing an Alleged Difference between Strict Liability and Negligence (November 17, 2011). Economic Analysis of Law Review, Vol. 2, No. 2, p. 188-203, 2011 . Available at SSRN: https://ssrn.com/abstract=1961169

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)

HOME PAGE: http://frg.sin-online.nl/staff/index.html?lia=227

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