Negligence Without Harm

50 Pages Posted: 25 Feb 2022

See all articles by Yehuda Adar

Yehuda Adar

University of Haifa

Ronen Perry

University of Haifa - Faculty of Law

Date Written: February 18, 2022

Abstract

The colloquial phrase “no harm, no foul” captures one of the most fundamental tenets of negligence law: the tort is incomplete and there can be no legal redress without proof of actual harm. Mere exposure to risk, even when it is foreseeable and unreasonable, is not actionable. The Article dares to challenge this time-honored, deep-rooted, and highly impactful legal axiom.

Part I restates the traditional quadripartite structure of the tort of negligence, highlights the implications of the harm requirement, and briefly reviews and characterizes past attempts to circumvent it.

The Article then launches a three-pronged attack on this traditional structure:

(1) Part II uncovers the internal normative incoherence of existing negligence doctrine (where breach of a legal duty does not in itself have legal repercussions) and offers “negligence without harm” as a coherent alternative.

(2) Part III provides a fairness-based case for abolishing the harm requirement, fostering the idea that negligence, defined as exposing another person to foreseeable unreasonable risk, is a moral wrong as between the risk-creator and the risk-bearer irrespective of harm.

(3) Part IV presents an economic case for the proposed reform, arguing that if tort law aims to prevent the creation of unacceptable risks, it does not have to await harm and use the indirect, complicated, and seemingly flawed method of ordering some people to pay compensatory damages ex post in order to ensure internalization by others ex ante.

Finally, Part V supplements the theoretical analysis with a tentative scheme of legal remedies for negligence without harm.

Keywords: tort law, remedies, negligence, law and economics, law and philosophy, private law theory

JEL Classification: K00, K13

Suggested Citation

Adar, Yehuda and Perry, Ronen, Negligence Without Harm (February 18, 2022). Georgetown Law Journal, Forthcoming, Available at SSRN: https://ssrn.com/abstract=4038781 or http://dx.doi.org/10.2139/ssrn.4038781

Yehuda Adar

University of Haifa ( email )

Mount Carmel
Haifa, 31905
Israel
+04 8240633 (Phone)

HOME PAGE: http://www.law.haifa.ac.il

Ronen Perry (Contact Author)

University of Haifa - Faculty of Law ( email )

Mount Carmel
Haifa, 3498838
Israel

HOME PAGE: http://law.haifa.ac.il/index.php/en/faculty-rperry

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