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Book
Prescription in tort law : analytical and comparative perspectives
Authors: ---
ISBN: 9781780689630 1780689632 9781839700507 1839700505 Year: 2020 Publisher: Cambridge Intersentia

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Abstract

Prescription is a major legal defence that bars civil actions on the claim after the expiry of a certain period of time. Despite its far-reaching practical effects on litigation and on society at large, and the fact that it is the subject matter of pervasive legal reforms in many countries, the law of prescription (limitation of actions) is rarely discussed, analysed and compared.00To meet this challenge, this book canvases in-depth the law of 15 selected jurisdictions (covering Europe, South Africa and the US jurisdictions) and extensively analyses in comparative perspective the elements of prescription (accrual of the cause of action, prescription periods, rules of suspension, renewal, extension, etc), their interrelations, and the policy considerations (including economic analysis). Topics also covered include the notions of?action?,?claim?, and?cause of action?, subjective and objective prescription, statute interpretation and judicial discretion. The book concludes with how the present law can be improved and where suitable harmonised. While its main focus is the prescription of tort claims, the analysis, comparison and conclusions are highly relevant to most civil actions.00'Prescription in Tort Law' is the result of a three-year research project lead by the European Group on Tort Law (EGTL) that brings together leading academics of the field.


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Proportional Liability: Analytical and Comparative Perspectives

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Causal uncertainty is a wide-spread phenomenon. Courts are often unable to determine whether a defendant's tortious conduct was a factual cause of a plaintiff's harm. Yet, sometimes courts can determine the probability that the defendant caused the plaintiff's harm, although often there is considerable variance in the probability estimate based on the available evidence. The conventional way to cope with this uncertainty has been to apply the evidentiary rule of 'standard of proof'. The application of this 'all or nothing' rule can lead to unfairness by absolving defendants who acted tortiously and may also create undesirable incentives that result in greater wrongful conduct and injustice to victims. Some courts have decided that this 'no-liability' outcome is undesirable. They have adopted rules of proportional liability that compensate plaintiffs according to the probability that their harm was caused by the defendant's tortious conduct. In 2005 the Principles of European Tort Law (PETL) made a breakthrough in this regard by embracing rules of proportional liability. This project, building on PETL, endeavours to make further inquiries into the desirable scope of proportional liability and to offer a more detailed view of its meaning, implications, and ramifications.

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