Comparative Tort Law

Comparative Tort Law

Global Perspectives

Research Handbooks in Comparative Law series

Edited by Mauro Bussani and Anthony J. Sebok

Comparative Tort Law: Global Perspectives provides a framework for analyzing and understanding the current state of tort law in most of the world's legal systems. The book examines tort law theories, rules and cultures. It looks at general issues at play throughout the globe, such as causation, economic and non-economic damages, product and professional liability, as well as the relationship between tort law and crime, insurance, and public welfare schemes. The book also provides insightful case studies by analyzing specific features of selected tort systems in Europe, USA, Latin America, East Asia, and sub-Saharan Africa.

Chapter 6: Liability rules: An economic taxonomy

Giuseppe Dari-Mattiacci and Francesco Parisi

Subjects: law - academic, comparative law, law of obligations


The predominant view among law and economics scholars is that “minimizing the social cost of accidents” is the principal purpose of tort law (Trimarchi, 1959a, 1959b, 1961, 1967; Calabresi, 1961, 1970). Unlike criminal activities, which society deems wholly unwanted and therefore impermissible, potentially tortious activities are ordinarily desirable. For example, driving cars, manufacturing, operating stores and restaurants, and practicing medicine are valuable activities that only incidentally create the potential for harm. The economic approach is to distribute those accident costs efficiently, so that the expected benefits of those activities, balanced against the expected costs, is maximal. Assuming the benefits of potentially tortious activities are fixed (an assumption we will later reconsider), the economic approach seeks to minimize the cost of accidents. We may analyze the “cost of accidents” as arising from three sources: (i) precautions, (ii) the harm itself, and (iii) litigation (Calabresi, 1970). Ordinarily, these costs are shared between three parties: tortfeasors, who bear the costs of their precautions, liability, and a share of court costs; victims, who likewise bear the costs of their precautions, harm, and a share of court costs; and taxpayers, who bear some portion of court costs. Notice that because neither the potential tortfeasor nor the potential victim bears the full expected cost of accidents, neither party will be fully incentivized to minimize those costs. It is this misalignment of incentives – between the private incentives of the parties and the social objective – that law and economics scholars have treated as the central problem of tort law.

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