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Vol 21 No 10 Oct/Nov 2016

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Altruism in Private Law: Liability for Nonfeasance and Negotiorum Gestio


ISBN13: 9780199280056
ISBN: 0199280053
Published: February 2005
Publisher: Oxford University Press
Country of Publication: UK
Format: Hardback
Price: £73.00



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Wildy's Book of the Month - March 2005
This book examines two problems in Private law which are posed by the 'good Samaritan': First, do we have a legal duty to give aid to our fellow human beings? In particular: can we be held liable for damages if we fail to do so? Second, if we do come to the rescue, as the good Samaritan did, will we have any claim for the expenses that we incurred, or perhaps even for a reward? Kortmann examines and compares the varied responses of the Roman, French, German, and English legal systems to these problems, providing the first comprehensive treatment of English law in relation to 'liability for nonfeasance' (or 'liability for omissions') and 'negotiorum gestio' (or 'the doctrine of necessity').

In Part I, Kortmann examines English law which draws a distinction between action and inaction, or 'feasance' and 'nonfeasance'. In general, one is not held liable for failing to act. He explores the theoretical justifications for drawing this distinction and reveals through a short comparative survey the fundamentally different approaches taken in France and Germany, concluding that the English rule of no liability for nonfeasance requires a reconsideration.

In Part II the English approach to the problem of reimbursement or reward is examined, detailing its profound differences from the Continental European approach. In principle, English law does not grant the necessitous intervener a claim against the beneficiary of his intervention. Kortamnn examines the theoretical justifications for assuming this position and again concludes that the law deserves reconsideration.

Finally, Kortmann concludes by demonstrating close interconnections between the two, traditionally independent issues. He argues that the law ought not to introduce a general duty to intervene without at the same time granting the intervener a claim, at the very least for reimbursement of expenses and compensation of any loss suffered in the course of the intervention.

Subjects:
Tort Law
Contents:
PART I: LIABILITY FOR NONFEASANCE
I. INTRODUCTION
II. WHAT IS 'NONFEASANCE'?
III. THEORETICAL JUSTIFICATIONS FOR DISTINGUISHING BETWEEN FEASANCE AND NONFEASANCE
IV. LIABILITY FOR NONFEASANCE IN CONTINENTAL EUROPEAN PRIVATE LAW
V. LIABILITY FOR NONFEASANCE IN ENGLISH PRIVATE LAW
VI. TOWARDS A MORE CONSISTENT APPROACH

PART II: GRANTING A CLAIM TO THE INTERVENER
VII. THE DIFFERENT MEASURES OF RECOVERY AND THEIR TERMINOLOGY
VIII. THEORETICAL ARGUMENTS AGAINST GRANTING A REMEDY TO THE INTERVENER
IX. THEORETICAL ARGUMENTS IN FAVOUR OF GRANTING A REMEDY TO THE INTERVENER
X. THE CONTINENTAL DOCTRINE OF 'NEGOTIORUM GESTIO'
XI. THE POSITION IN ENGLISH LAW
XII. TOWARDS A GENERAL PRINCIPLE: USING THE EXISTING DOCTRINES?
XIII. TOWARDS A NEW GENERAL PRINCIPLE
EPILOGUE