Israel Gilead, ‘On the Justifications of Strict Liability’

Comparing US strict liability with European strict liability it is suggested that there are two kinds of strict liability. One kind, activity-based, presumes that the actor’s activity is undesirable, and is justified by considerations of deterrence and justice which justify fault-based liability. The other kind, outcome-based liability, is imposed although the actor’s activity is desirable, and is justified by considerations of fairness in loss allocation and of loss spreading. It is further suggested that many strict liability arrangements are actually a mixture of both kinds of strict liability. These mixed arrangements include: liability for abnormally dangerous activities, animals and dangerous things; vicarious liability; and strict product liability. The justification-analysis explains and supports the diversity of strict liability arrangements and the absence in most European jurisdictions of a general rule of strict liability. Finally, it is argued that the imposition of tort liability on desirable conducts should not be considered an anomaly or an illegitimate child of tort law. It is a powerful tool that, through the reallocation of benefits and burdens and loss spreading, can promote fairness and justice in society and mitigate the unavoidable misfortunes of modern life.

Gilead, Israel, On the Justifications of Strict Liability (January 1, 2005). European Tort Law 2004 28 (Helmut Koziol and Barbara C Steininger (eds), 2005)

First posted 2014-09-05 04:57:26

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