The Fault of Trespass

University of Toronto Law Journal (2015 Forthcoming)

42 Pages Posted: 7 Aug 2014 Last revised: 28 Oct 2014

Avihay Dorfman

Tel Aviv University - Buchmann Faculty of Law

Assaf Jacob

The Interdisciplinary Center Radziner School of Law

Date Written: August 6, 2014

Abstract

The conventional wisdom has it that a property owner assumes virtually no responsibility for guiding others in fulfilling their duties not to trespass on the former's property. In other words, the entire risk of making an unauthorized use of the property in question rests upon the duty-holders. This view is best captured by the Keep-Off picture of property, according to which the content of the duty in question is that of excluding oneself from a thing that is not one's own. In this article, we argue that this view is mistaken. We advance conceptual, normative, and doctrinal arguments to show that this account runs afoul of the actual workings of the tort in question. A more precise account of trespass to land will reveal that the tort gives rise to a hybrid regime of tort liability: one which combines considerations of fault along with those of strict liability. On the proposed account, therefore, an owner does assume some responsibility for guiding others in fulfilling the duty they owe the former.

Keywords: trespass, strict liability, fault, responsibility, property

JEL Classification: K11, K13

Suggested Citation

Dorfman, Avihay and Jacob, Assaf, The Fault of Trespass (August 6, 2014). University of Toronto Law Journal (2015 Forthcoming). Available at SSRN: https://ssrn.com/abstract=2476818

Avihay Dorfman (Contact Author)

Tel Aviv University - Buchmann Faculty of Law ( email )

Ramat Aviv
Tel Aviv 69978, IL
Israel

Assaf M. Jacob

The Interdisciplinary Center Radziner School of Law ( email )

P.O. Box 167
Herzliya, 46150
Israel
972-9-9527280 (Phone)
972-9-9568605 (Fax)

Paper statistics

Downloads
110
Rank
204,327
Abstract Views
458