Negligence, Hand Formula, and Compensation

21 Pages Posted: 22 Jan 2012

See all articles by Eugenio Battesini

Eugenio Battesini

Advocacia Geral da União (Brazilian Government); Universidade Federal do Rio Grande do Sul (UFRGS/Brazil)

Date Written: January 20, 2012

Abstract

The Hand formula is recognized as an important criterion for fault assessment. Landes and Posner draw attention to the fact that the importance of the Hand formula goes beyond the area of culpability, qualifying it as an algorithm which can be employed for deciding tort questions generally. One of the main difficulties in legal theory lies in the establishment of objective criterion allowing for quantitative assessment of the reduction or increase (punitive damages) in the amount of indemnification relative to damage. The present study develops the basic hypothesis that it is possible to apply the Hand formula as a criterion for assessing the fault of both injurer and victim so as to aid in establishing the amount of indemnification. The paper is structured into four parts. The first part presents the Hand formula, exploring its potential for application as a criterion for fault assessment. The second part explores the potential use of the Hand formula as a criterion for fault gradation. The third part turns to the question of determining indemnity, presenting the theoretical elements of damage and indemnity. The fourth part develops the application of the Hand formula as a criterion for fault gradation in order to set the amount of indemnity. The conclusion highlights the fact that the application of the Hand contributes to the systematization and rationalization of the decision-making process in the complex and multi-faceted cases encountered in the field of torts, increasing the predictability of judicial decisions.

Keywords: Law and economics, Tort, Hand formula, Fault, Damage, Indemnity, Brazil

JEL Classification: K13

Suggested Citation

Battesini, Eugenio, Negligence, Hand Formula, and Compensation (January 20, 2012). Available at SSRN: https://ssrn.com/abstract=1988935 or http://dx.doi.org/10.2139/ssrn.1988935

Eugenio Battesini (Contact Author)

Advocacia Geral da União (Brazilian Government) ( email )

Av. Carlos Gomes, 1942
Porto Alegre RS CEP 90480-004, RI Rio Grande do Sul 92310-190
Brazil
(5551) 21394633 (Phone)
(5551) 21394600 (Fax)

HOME PAGE: http://www.ppge.ufrgs.br/direito-economia

Universidade Federal do Rio Grande do Sul (UFRGS/Brazil) ( email )

Av. Carlos Gomes, 1942
Porto Alegre RS CEP 90480-004, RI Rio Grande do Sul 92310-190
Brazil
(5551) 21394633 (Phone)
(5551) 21394600 (Fax)

HOME PAGE: http://www.ppge.ufrgs.br/direito-economia

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