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Friday, October 26, 2012

General Principles Of Liability

There are two theories with regard to the basic principle of liability in the law of torts or tort. They are:

# Wider and narrower theory- all injuries done by one person to another are torts, unless there is some justification recognized by law.
# Pigeon-hole theory- there is a definite number of torts outside which liability in tort does not exist.
The first theory was propounded by Professor Winfield. According to this, if I injure my neighbour, he can sue me in tort, whether the wrong happens to have a particular name like assault, battery, deceit or slander, and I will be liable if I cannot prove lawful justification. This leads to the wider principle that all unjustifiable harms are tortious. This enables the courts to create new torts and make defendants liable irrespective of any defect in the pleading of the plaintiff. This theory resembles the saying, my duty is to hurt nobody by word or deed. This theory is supported by Pollock and courts have repeatedly extended the domain of the law of torts. For example, negligence became a new specific tort only by the 19th century AD. Similarly the rule of strict liability for the escape of noxious things from one’s premises was laid down in 1868 in the leading case if Rylands v. Fletcher.
The second theory was proposed by Salmond. It resembles the Ten Commandments given to Moses in the bible. According to this theory, I can injure my neighbour as much as I like without fear of his suing me in tort provided my conduct does not fall under the rubric of assault, deceit, slander or any other nominate tort. The law of tort consists of a neat set of pigeon holes, each containing a labeled tort. If the defendant’s wrong does not fit any of these pigeon holes he has not committed any tort.
The advocates of the first theory argue that decisions such as Donoghue v. Stevenson shows that the law of tort is steadily expanding and that the idea of its being cribbed, cabined and confined in a set of pigeon holes in untenable. However salmond argues in favour of his theory that just as criminal law consists of a body of rules establishing specific offences, so the law of torts consists of a body of rules establishing specific injuries. Neither in the one case nor in the other is there any general principle of liability. Whether I am prosecuted fro an alleged offence or sued fro an alleged tort it is for my adversary to prove that the case falls within some specific and established rule of liability and not fro for me to defend myself by proving that it is within some specific and established rule of justification or excuse. For salmond the law must be called The Law of Torts rather that The Law of Tort.

Distinction between crime and tort.

Crime and Tort both are wrongful act. but two have many distinction.some main distinction given by 
Peter Suber

Crimes v. Torts

This table summarizes some of the basic differences between crimes and torts, or between criminal law and tort law. We'll elaborate on most of these differences in class.

immediate purposepunishment of criminalcompensation of victim
balance of defendant's wrong and victim's injuryemphasis on df's moral wrong, not victim's injuryemphasis on victim's injury, not df's moral wrong
theory of offenseoffense to all society; public interestonly victim injured; private interest only
initiating partythe state, "the people", represented by prosecutorthe victim, plaintiff
verb/nountry/trial, or prosecute/prosecutionsue/suit
defendant's right to a jury trialyes (6th Amendment)only sometimes (7th Amendment)
defendant's right to counselyesno
deadline on actionstatute of limitationslaches; equitable estoppel; sometimes a statute of limitations
category of responsibilityguiltliability
standard of proof"beyond a reasonable doubt""by a preponderance of the evidence"
judge may direct a verdict of guiltynoyes
fate of convicted defendantsuffers punishment (fine, imprisonment, death)pays compensatory damages, sometimes punitive damages; sometimes is enjoined
fate of victimignoredcompensated
permissible appealsby defendant only (state barred by double jeopardy)by defendant or plaintiff
defendant's testimonymay not be compelled (privilege against self-incrimination)may be compelled
affirmative defensesexcuse, justificationimmunity, consent, privilege (and others)
effect of victim consent, forgiveness, condonationconsent rarely a defenseconsent always a defense
general domain of lawcriminalcivil
form of lawstatute (mostly)case law, common law (mostly)
primary lawmakerlegislaturecourt
accountability of lawmakerelectedusually appointed, sometimes for life
role of precedentonly for interpreting statutefor substance
availability, prior notice, promulgation of lawalways written; clarity and prior notice importantunwritten except as cases after the fact
retroactivity of lawno ex post facto; usually no "common law crimes"may be ex post facto
    This list of differences should not obscure the similarities between criminal law and tort law. For example, both kinds of law:
    • must be consistent with the state and federal constitutions
    • are applied and interpreted by courts
    • use juries for questions of fact
    • have similar appeal routes for convicted defendants
    • have procedural and substantive dimensions
    • may apply to the very same act (both kinds of legal action may proceed simultaneously)
    • may use the same legal concepts (battery is both a crime and tort; punitive damages resemble criminal fines; contempt of court can be criminal or civil).

Sunday, October 21, 2012

Why Do We Need Tort Law? What Purposes Does It Serve?

Why Do We Need Tort Law? What Purposes Does It Serve, And Could Those Purposes Be Equally Or Better Served In Other Ways?

‘Tort Law' is the law of wrongdoing. The basis of tort law is to enable a person who has been wronged to ask for compensation. This concept has been avid since pre-industrialisation with the invention of the ‘writs'. Though evolved into ‘Tort Law', it cannot be forgotten that the aim in which the ‘writ' was instated in the first place - to enforce the idea of an individual's obligation to another. The surfacing of the concept of negligence here is key to understanding the need for tort law. Negligence, an act which falls short of what a reasonable person would do to protect another in foreseeable risk of harm, has been in many lengths criticized due to its ambiguity in definition. Nonetheless, the inherent concept still remains - it is what we as individuals owe each other.
Tort law has many active functions in society, as is any other form of law. But it should be emphasised that tort law mainly deals with correcting a civil wrong. Tort law is built upon a system where no one should be given lee way to injuring anyone; but then again so is criminal law. A distinguishable barrier however is existent in the form of which the injured is to be compensated for another's act of wrong doing. The justifications between tort and crime are hardly direct but a lucid contrast between the two is the form in which it compensates individuals, i.e. Payable damages to those that have been wronged as opposed to criminal offences where, instead, an individual is punished. Tort law, to put simply, is needed to remind us that we need to care not just of ourselves but of others as our actions may directly or indirectly affect them whether it is now or in the future.
The existence of tort law serves, in my opinion, two main discretions in society - public and private responsibility. Tort law is advantageous to the public because the enforcement of policies and limits to the general society imposes a perception of which people are conveniently less selfish as they always have to think in the way of a ‘reasonable person'. This is later enveloped in the household as the morality of society is incurred into nurturing and influencing those at home. The consequence of being labeled is also what is condoned by individuals - a form of conventional fear that is stitched upon society - especially in our generation of taboo and encompassing media.

Why do we need Tort Law? What purposes does it serve, and could those purposes be equally or better served in?

(Why do we need Tort law)  Tort law is simply civil law as opposed to criminal law which is always enforced by a government entity. Without tort law there would be no system for redress of wrongs committed by one person against another or others which fell outside the realm of criminal sanctions specified by code or statutes. Tort law in our system has evolved from the old English common law system carried to our country by settlers originating from England. Court of Equity and arbitration are two forms of potential resolution of torts committed against a party or parties that are separate from the actual filing and prosecution of a lawsuit due to actions of alleged tort fears. Classic examples of instances handled under tort law would be automobile accidents or a personal injury caused by someone's negligence. Hope that helps a little.

Tuesday, October 16, 2012

Breach of Trust,Liability,Remedies

The Uniform Trust Code (UTC) §804 stipulates that the trustee has a duty to administer the trust with skill and care as a person of ordinary prudence would use in dealing with his or her own property and to be loyal to the beneficiaries (§802). The trustee is a fiduciary for the beneficiaries. Any actions taken by the trustee are viewed in respect to these duties and to the trustee's fiduciary obligation. The focus is on what a reasonable person would do to accomplish the trust's objectives, not the trustee's subjective intentions. For instance, if the trust document stipulates that the beneficiaries are to receive enough income for their comfort and support, then the trustee has a duty to inquire into the condition of each beneficiary to determine their needs. If the trustee fails to carry out the terms of the trust or falls short in his fiduciary obligation to the beneficiaries, then he may be liable for breach of trust.
Because beneficiaries enforce the terms of the trust, as a practicable matter, a breach of trust claim is more likely to be filed if they perceive that their benefit is less because of mismanagement of the trust's assets, self-dealing by the trustee, or the lack of impartiality in distributing the benefits of the trust.
The trustee has a duty to avoid conflicts of interest where it may deal with a third-party buyer where the trustee has a relationship that may affect the assessment of the proposed transaction. If the transaction involves a possible conflict of interest but is not self-dealing then the transaction is assessed to see if it was reasonable and fair under the circumstances before any liability is attached.
The trustee is also guilty of breach of trust because of commingling of the trust funds with his own, because it makes the funds more difficult to trace and could subject them to the personal creditors of the trustee.
The trustee may also be liable for breach if the trustee consents to an action by a co-trusteethat constitutes a breach, or negligently fails to stop or try to stop co-trustees from engaging in the action that constitutes a breach, since a trustee's fiduciary duties include monitoring the conduct of co-trustees. Failure to monitor the actions of co-trustees or delegating one's non-ministerial responsibilities to co-trustees constitutes a breach of trust.
Consequently, co-trustees are jointly liable. If one trustee is held liable, the other trustees will share the liability, unless the trustee acted in bad faith or benefited personally from the breach of trust.
However, a trustee is generally not liable to the beneficiary for breach to the extent that the trustee acted in reasonable reliance upon the provisions of the trust.

Liability of Third Parties

One problem with managing the trust is liability of third parties dealing with trust property. Historically, third parties were held strictly liable for any breach of trust by the trustee involving any transaction that they engaged in. The law imposed a duty upon the third parties to inspect the trust document to ensure that the transaction was authorized by the trust document and that the trustee was acting in the best interests of the beneficiaries. This legal liability deterred third parties from dealing with trusts, and, thus, restricted the trustee's ability to deal with trust property.
UTC §1012 eliminates the duty of third parties to inquire about the terms of the trust to protect themselves from liability because of the trustee's breach unless they have actual knowledge of the breach, but only requires that third parties act in good faith and give valuable consideration for their transactions.

RRemedies for Breach of Trust

Generally, UTC §1005 requires that a beneficiary must commence a proceeding against a trustee within 1 year of being issued a report where the breach was evident or if there was information that the beneficiary should have inquired about. However, if a breach was not evident from any report, a beneficiary must bring a claim within 5 years of the sooner of:
  • the removal, resignation, or death of the trustee;
  • the termination of the beneficiary's interest in the trust;
  • or trust termination.
The remedy for breach of trust depends on the breach, but the main objective is to make the beneficiaries whole. UTC §1001(b) lists the following remedies, allowing the court to:
  • order a trustee to give an account of the trust;
  • compel the trustee to perform his duties, pay money, or restore the property;
  • enjoin the trustee from committing a breach of trust;
  • reduce or deny compensation to the trustee;
  • appoint a special fiduciary to replace the trustee;
  • void an act of the trustee, impose a lien or a constructive trust on trust property, or recover property wrongfully disposed of or its proceeds; or
  • order any other appropriate relief.
If the trustee sells property for too low a price, then the trustee may be liable for the difference between the actual sale price and the price that should have been realized. If the trustee sells property that he was not authorized to sell, and the property appreciates, then appreciation damages will be awarded. Appreciation damages constitute the difference between the sale price and the value the property as of the date of the court's decree.
The trust pursuant rule provides a remedy for breach of trust when the trustee disposes wrongfully of trust property in exchange for other property—the court creates a constructive trust of the property for the beneficiaries. The constructive trust is also imposed on any transferees who take the property with notice of the breach or who give no value or little value for the property.
The make-whole standard is implemented by holding the trustee liable for any losses incurred and gains foregone as a result of the breach or any profits earned by the trustee because of the breach (UTC §1002).
Several methods have been used by the courts to assess damages:
  • the total-return damages approach is the profits that would've been made had the proper actions been taken;
  • the capital lost plus interest approach calculates a rate of interest based on the historic average annual rate of inflation as reflected by long-term government bonds or the legal rate applied to money judgments;
  • and the market-index approach calculates damages by comparing the difference between the trust portfolio performance versus the performance of a broad market index such as the S&P 500.
Sometimes the trustee may make a profit from a commission or bonus from a third-party in exchange for the trust's business. While this is not necessarily a breach, allowing this may motivate the trustee to engage in the transaction even when it may not be best for the beneficiaries. Hence, the trustee is typically restricted to the compensation specified in the trust document and any profits made outside of this compensation are payable to the beneficiaries. (UTC §1003)

PPersonal Liability of the Trustee

A trustee is not personally liable for torts committed in the course of the administering the trust unless the trustee was personally liable. The trustee is also not personally liable for any breach of contract entered into as a fiduciary of the trust. However, a claim based on the contract can be asserted against the trustee in the trustee's fiduciary capacity. (UTC §1010)

Friday, October 5, 2012

The Twelve Tables of Roman Law

The term "Twelve Tables" Latin Lex XII Tabularum,  the earliest written legislation of ancient Roman law, traditionally dated 451–450 bc.
The Twelve Tables allegedly were written by 10 commissioners (decemvirs) at the insistence of the plebeians, who felt their legal rights were hampered by the fact that court judgments were rendered according to unwritten custom preserved only within a small group of learned patricians. Beginning work in 451, the first set of commissioners produced 10 tables, which were later supplemented by 2 additional tables. In 450 the code was formally posted, likely on bronze tablets, in the Roman Forum.