We use cookies to distinguish you from other users and to provide you with a better experience on our websites. Close this message to accept cookies or find out how to manage your cookie settings.
To save content items to your account,
please confirm that you agree to abide by our usage policies.
If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account.
Find out more about saving content to .
To save content items to your Kindle, first ensure coreplatform@cambridge.org
is added to your Approved Personal Document E-mail List under your Personal Document Settings
on the Manage Your Content and Devices page of your Amazon account. Then enter the ‘name’ part
of your Kindle email address below.
Find out more about saving to your Kindle.
Note you can select to save to either the @free.kindle.com or @kindle.com variations.
‘@free.kindle.com’ emails are free but can only be saved to your device when it is connected to wi-fi.
‘@kindle.com’ emails can be delivered even when you are not connected to wi-fi, but note that service fees apply.
An initial inquiry into the economic analysis of prescription law, made more than a decade ago, led the author to the recognition that this kind of analysis is most complicated and that:
Given this complexity, it is doubtful whether substantiated conclusions can be reached regarding the efficiency of a given time limit or rule of prescription. Such a conclusion requires complex analysis of information of a kind and scope which is unattainable, “ the stuff that dreams are made of “ as Ronald Coase once said with regard to complex economic analysis. When such dreams do not come true, one can only hypothesize about the efficiency of time limits and rules of prescription.
The preceding Analytical and Comparative Report (ACR) has strengthened and corroborated this recognition. It further highlights the complexity of prescription law given its goals and the parties affected by it, complexity which actually renders it unsusceptible to accurate, meaningful and reliable economic analysis.
After reiterating the very basics of economic analysis of law (Section II), this report, highlights, on the background of the ACR, the welfare measurement problems that plague the economic analysis of prescription law (Section III). It then focuses on the intricate interrelations and cross-effects between the legal variables that constitute prescription law, as analysed in the ACR, and the ensuing difficulties for reliable economic analysis (Section IV). At the same time, it is argued (Section V) that the very basic economic analysis nevertheless suffices to support two related claims made in the ACR: the claim that a major goal of prescription law should be the protection of potential Ds, and the consequential claim that broad judicial discretion in the application of the defence should be avoided. A short comment on prescription law and the fair distribution of wealth concludes (Section VI).
ON THE BASICS OF ECONOMIC ANALYSIS OF PRESCRIPTION LAW
WELFARE AND EFFICIENCY OF LEGAL RULES
Economic analysis of law focuses on the effects of legal rules on the aggregate well-being, welfare, in a given society. A legal rule which enhances net aggregate welfare is considered a more desirable rule than an alternative legal rule which generates less net aggregate welfare.
(Failure to ensure the wearing of a ski helmet) : D, a ski instructor, negligently fails to make sure that all skiers in her‘off -piste‘group wear helmets. P, a skier in the group, hits a tree. P immediately suff ers head injury X, and years later another head injury Y that developed from the same accident.
An. and Comp. Report ……….. 26 Germany ……………… 349 Poland …………… 529
Austria ……………………………… 147 Greece …………………. 386 South Africa ….. 559
France ………………………………. 316 Norway ………………… 488 United States …. 662
Case 2
(Three mistakes during one treatment) : Physician D treats patient P negligently and performs three mistakes on the day of the treatment: A, B and C. Mistake A causes harm X after a year. Mistake B causes harm Y after two years. Mistakes A and C together cause harm Z after three years.
An. and Comp. Report ……….. 29 Germany ……………… 349 Poland …………… 529
Austria ……………………………… 149 Greece …………………. 387 South Africa ….. 559
France ………………………………. 317 Norway ………………… 489 United States …. 664
Case 3
(Consecutive harms from one injury) : Builder D lays down defective foundations for a building thereby creating the risk of future collapse. As a result, the value to the owner of the building (P) decreases (harm A). Two years later the foundation subsides and requires fixing paid by P (harm B). Three years later cracks appear in the building fixed by P (harm C). Four years later the building collapses (harm D).
An. and Comp. Report ……….. 30 Germany ……………… 350 Poland …………… 529
Austria ……………………………… 150 Greece …………………. 387 South Africa ….. 560
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. To 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. 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. It is an invaluable resource for private lawyers. With contributions by Bjarte Askeland (Bergen Appeal Court Judge, Norway), Ewa Baginska (University of Gdansk, Poland), Jean-Sébastien Borghetti (University Paris II Panthéon-Assas, France), Giovanni Comandé (Sant'Anna School of Advanced Studies, Italy), Eugenia Dacoronia (University of Athens, Greece), Isabelle Durant (Université catholique de Louvain, Belgium), Israel Gilead (Hebrew University, Israel), Michael D Green (Wake Forest University, United States), Ernst Karner (University of Vienna, Austria), Anne LM Keirse (Utrecht University, The Netherlands), Bernhard A Koch (University of Innsbruck, Austria), Frédéric Krauskopf (University of Bern, Switzerland), Ulrich Magnus (University of Hamburg, Germany), Miquel Martín-Casals (University of Girona, Spain), Johann Neethling (University of the Free State, South Africa), Elena Occhipinti (University of Pisa, Italy), Ken Oliphant (University of Bristol, United Kingdom), Albert Ruda (University of Girona, Spain), Stefan Rutten (University of Antwerp), Luboš Tichý (Charles University, Czech Republic) and Bénédict Winiger (University of Geneva, Switzerland). ISRAEL GILEAD is Bora Laskin (Emeritus) Professor of Law at the Hebrew University of Jerusalem, where he was Dean of the Faculty of Law between 1999 and 2002. Since 2016, he has been a Professor and Head of the Advanced Legal Studies program at The Academic Center for Law and Sciences, as well as Head of the committee in charge of social sciences, law and business administration at the Israeli Council of Higher Education. Israel is a Member of the European Group on Tort Law and of the American Law Institute and is the author of numerous publications on tort law, law and economics, prescription and corporate law. BJARTE ASKELAND is an Appeal Court Judge in Gulating lagmannsrett, Bergen, Norway and a Professor of Law at the University of Bergen. He is a Member of European Group of Tort Law and author of numerous monographs and articles on tort law.
In the course of the analytical and comparative discussions following this Questionnaire some changes were made in the cases, in the order of the topics discussed and in the suggestions made. Therefore there are some differences in this regards between the Questionnaire and the final reports.
INTRODUCTION
The aim of the project is to explore how (and why) the passage of time on an alleged tort law claim affects (and should affect) the claim, the parties (P the plaintiff and D the defendant) and other parties through the defence of prescription (limitation of actions).
DEFINITION OF PRESCRIPTION
Prescription in tort law is a legal institution that prevents P from enforcing an alleged right against D because of the running of a specified period of time on the tort claim. In the context of tort law the subject of prescription is usually the right to tort remedy, mainly the right to damages for harm caused. This right to remedy is a right that comes into being once a right imposed by tort law, such as the right to bodily and property integrity, and the right to reputation, is breached (some jurisdictions distinguish in this regard between a primary right and a secondary right to remedy). For the purpose of this project, claims for professional malpractice are also considered as tort claims, although in some jurisdictions they are treated as contractual claims, as long as they are based on grounds of tortious conduct (eg breach of a standard of care).
Question– Does this definition suit your jurisdiction ? Other definitions?
THE NATURE OF PRESCRIPTION AND ITS EFFECTS
There are different ways by which prescription prevents P from enforcing an alleged right of remedy against D. Its effect may be: (a) to extinguish P's right to remedy; (b) to provide D with a substantive defence that prevents P from enforcing the right to remedy although it is not extinguished; (c) to provide D with a procedural defence that bars P's ability to litigate the right in courts.
This project of the European Group on Tort Law (EGTL) aims to explore how the passage of time on a tort law claim can affect, actually affects and should affect, through the defence of prescription (limitation of actions), the claim, the parties (plaintiff P and defendant D) and other parties. For the purpose of this project, claims for professional malpractice, although considered as contractual claims in some jurisdictions, are treated as tort claims to the extent that they are based on grounds of tortious conduct (such as breach of a standard of care).
Notably, this report focuses on the general law of prescription of tort liability. Special rules of prescription that apply to specific contexts, such as prescription in cases of sexual abuse, prescription under European Council Directives and their national implementations, or of tort claims for harms caused by atomic installations, are discussed, when relevant, only in the national reports and the European Union report. It is also emphasised that this project does not discuss legal arrangements under which rights (such as legal powers) exist from the outset for a limited period of time after which they expire‘from the inside‘rather than by the operation of prescription law. Neither does it discuss acquisitive prescription as a way to acquire property rights in immovable and movables.
The discussion of each of the following topics starts with a theoretical analysis, based on the first round of EGTL discussions, and then proceeds to a comparative report and its conclusions, based on the second round of EGTL discussions. It should be emphasised, though, that the analysis, the observations and the suggestions made in this report, as well as the final conclusions (Section XIII) reflect the views of the authors and not of the EGTL.
DEFINITION OF PRESCRIPTION
Prescription in tort law is a legal institution that prevents the plaintiff (P) from enforcing a tort claim against the defendant (D) because of P's failure to file an action on the claim during the running of a specified period of time on the claim.
The distinction between tort and contract is in principle based on the facts that have to be established in order to constitute a cause of action. Contract law (statutory and case law) requires the claimant (C) to establish that an obligation under a valid contract was breached, that the contract has defects, that a pre-contractual obligation was breached, etc. Tort law (statutory and case law) requires C to establish that a specified tort was committed or that a duty which is classified as part of tort law has been breached.
B. EXISTENCE OF A ‘GREY ZONE‘?
A ‘grey zone’ between contract and tort exists where the facts of a case constitute both a cause of action in contract and a cause of action in tort. This, for example, may happen in cases of lack of good faith in pre-contractual negotiations. Absence of good faith may constitute a cause of action under contract law for breach of the pre-contractual duty of ‘bona fide’ negotiations, and also a cause of action in tort law, usually for negligent misrepresentation. Yet, remedies may differ under these different causes of action.
C. COMMON OR DIFFERENT RULES REGULATING TORT AND CONTRACT
At present each field of law is governed by the statutory provisions that are classified as being either ‘tort’ law or ‘contract’ law. The same applies to case law, which interprets and supplements those provisions. Therefore, in principle, there are no rules common to tort and contract but rather different rules, for example regarding legal causation, remoteness of damage, joint liability and, most importantly, remedies. The remedy of specific performance (enforcement), for instance, is traditionally considered primary in contract 4 law but only secondary in tort law.
Notably, there is both a legislative and judicial tendency to unify contractual rules and rules in tort. The proposed Civil Code of 2011, for example, to a considerable extent unifies remedies under tort and under contract. Another step already taken toward unification is the application of the statutory tort defence of ‘contributory (comparative) negligence’ by the courts to contract law, although absent in statutory law.
The liability of public authorities in Israel falls under private law and is governed by the substantive and evidential rules that apply to other categories of tort liability. It is considered as such not only where the public authority functions in its private capacity (eg, as an owner of property, employer, operator of schools and hospitals) but also where it functions in its governmental capacity (eg, regulation, licensing and supervision, military and police activities, planning and zoning, taxation). In fact, a special statutory provision applies ‘a rule of equality’ under which public authorities are subjected to tort liability in the same way that any other corporate body is subjected to it. Accordingly, liability of public authorities, even when acting in their governmental capacity, is adjudicated by civil courts and not by administrative courts, and is usually imposed under negligence law. It is also governed by the same policy considerations that apply to other categories of tort liability.
On the other hand it should be acknowledged that tort liability for governmental activities has some unique features as these activities have no parallels in private activities: they are authorised or sanctioned by statutory provisions; they are also governed by administrative law and may be adjudicated before administrative courts; and some policy considerations apply differently to governmental activities than to private activities. So, arguably, tort liability for governmental activities is a kind of a ‘hybrid’ between ‘pure’ private tort liability and administrative liability. Actually, courts adjudicating tort claims against public authorities are in fact engaged in ‘a judicial review’ of these activities which supplements and magnifies the judicial review by administrative courts under administrative law. Therefore, although the substantial rules applied to private and governmental activities are the same, they may be applied in a different manner in each context.
As to its sources, tort liability of public authorities in Israel is basically the product of judge-made law in the sense that it has been developed by the courts which applied the general law of torts on the governmental activities of public authorities.
Since the enactment of the Defective Product (Liability) Law, 1980 (DPLL), one can distinguish between two sets of legal rules governing product liability in Israel. The provisions of the DPLL compose one set of rules. These rules apply to the liability of a producer for bodily injury caused by a defective product, as defined by the DPLL. The other set of rules, hereinafter referred to as the ‘general liability arrangements’ (GLA), is composed of all tort liability arrangements besides the DPLL, and of other contractual liability arrangements (including the law of sales), that apply to harm caused by products. The major tort liability arrangements of the GLA, embodied in the Civil Wrong Ordinance (CWO), are the tort of negligence and, to a lesser extent, the tort of breach of statutory duty (BSD). GLA rules may apply to all kinds of harms (including bodily injury) caused by all kinds of defective products. Consequently, the two sets of liability rules, the DPLL and the GLA, may overlap in cases of defective product causing bodily injury. The aggrieved party, the plaintiff, may sue the harm-inflicting party, the defendant, in both venues of liability. When the DPLL does not apply because the harm caused is not bodily injury or because another requirement of the DPLL is not met, the plaintiff may resort to the variety of claims available under the GLA venue.
The major difference between the liability regime in the DPLL on the one hand, and the tort of negligence as the major cause of action in tort under GLA on the other hand, is that under the former liability is, at least partially, strict liability, while under the latter it is basically fault-based. Given this difference one would expect most claims for bodily injury caused by products to be made under the DPLL because strict liability is supposedly wider in scope and easier to establish than fault-based liability in negligence. In reality, however, the following factors made the DPLL less attractive than one might expect: the complexity of the ‘defectiveness’ concept; caps in the DPLL on awards for loss of earning and for non-pecuniary harms; and shorter limitation periods.
In a recent article, Prof. Izhak Englard reviewed the salient developments in tort law over the last decade. These developments are:
(a) Deciding the question of the internal structure of the Civil Wrongs Ordinance as regards the relationship between the general and the specific torts.
(b) Extension of tortious liability for negligence, and the crystallization of the conceptual framework of that tort.
(c) Expanding the scope of the tort of breach of a statutory duty by allowing the unimpeded inclusion of statutory duties within the scope of the Civil Wrongs Ordinance.
(d) Removal of the umbrella erected by the case law in order to shield the State and its agencies from liability for negligence and the breach of a statutory duty, and the equation of the position of the State to that of other tortfeasors.
According to the famous “Coase Theorem”, market forces, under given conditions, will automatically, without any external intervention, bring about an efficient allocation of resources. These conditions, necessary for the smooth operation of the “invisible hand” which leads to efficiency, are denoted as “absence of transaction costs”, as the presence of transaction costs may impede this desired process. The main legal implication outlined by Coase is that absent transaction cost, there is no need, and no place, from an efficiency point of view, for liability rules: resource allocation would be the same either with or without them. An act which is efficient will be carried out despite a liability rule which imposes the burden of compensation on the actor. On the other hand, an inefficient act will be barred by market forces without the help of liability rules.
Recommend this
Email your librarian or administrator to recommend adding this to your organisation's collection.