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Preventive Liability and System of Sanctions in Tort Law

from PART III - FUNCTIONS OF REMEDIES

Published online by Cambridge University Press:  09 November 2019

Luboš Tichý
Affiliation:
Charles University Prague, Czech Republic
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Summary

INTRODUCTION

Prevention in a broad sense is a part of existing tort law. As an economic analysis of the law, based on cost and revenue tests, quite persuasively proves, it is advantageous for an economically-thinking individual to respect a certain standard of behaviour (duty of care). It is better to take precautions to prevent damages rather than to be involved in such an incident – whether as an injured party or a perpetrator, and thus as a compensation recipient or, on the contrary, as a compensation payer. Such behaviour should be promoted as well by a general system of protection, including in particular the insurance system.

This chapter addresses prevention in tort law, but in a slightly different way than in which this phenomenon is conventionally addressed. It aims to prove that prevention has specific features and thus can constitute different aim and content than the prevention traditionally understood within tort law. This is, therefore, a case of the so-called prevention in a narrow sense, which concerns situations of emergency or peril to a third person, somebody else's property or general asset, lacking any relation to a potential rescuer.

This kind of prevention has its legal basis in § 2901 of the Czech Civil Code/2012. According to this provision, an individual is obliged to intervene in favour of somebody else if he/she ‘can, according to his potential and skills, easily avert harm of which he knows or must know that its impending gravity clearly exceeds what must be exerted for the intervention has the same duty.’

The Czech legislator codified – in harmony with the Czechoslovak tradition – a so-called ‘tortious preventive liability’, which represents a unique phenomenon. A legal (statutory) duty has been imposed on persons referred to as ‘Samaritans’, who are independent of the person who faces threatening harm. A violation of the duty to intervene can be considered a tort, establish a prerequisite of the preventive liability and, as consequence of it, of a sanction: a secondary duty in the sense of compensation of the damage which could have been avoided.

Hence, the prevention in the broad (traditional) sense is enriched by this specific prevention (prevention in the narrow sense). This preventive liability extends the mechanism (system) of tort law through a new paradigm.

Type
Chapter
Information
Law of Remedies
A European Perspective
, pp. 169 - 194
Publisher: Intersentia
Print publication year: 2019

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