Edited by Mauro Bussani and Anthony J. Sebok
Chapter 14: A comparative law sketch of pure economic loss
The recoverability of pure economic loss stands at the cutting edge of many crucial questions that have drawn theoretical and judicial attention over the last decades. To what extent should tort rules be compatible with the market orientation of the legal system? Or, as some may phrase it, how far can tort liability expand without imposing excessive burdens upon individual activity? As a matter of policy should the recovery of pure economic loss be the domain principally of the law of contract? This chapter pursues the modest goal of sketching possible answers to these questions. Thus, it will first (sections 2–4) outline the notion and the factual situations where this loss is likely to occur. Then, it will discuss the broad spectrum of differing approaches to this kind of damage in Western tort law (section 5) as well as the basic arguments for an exclusionary rule (section 6). Finally, the chapter will sketch conclusions about the past and future developments of doctrines and rules about pure economic loss (section 7). There has never been a universally accepted definition of ‘pure economic loss’. What is universally clear instead is the negative cast and the patrimonial character of that loss. In countries where the term is well recognized its meaning is essentially explained in a negative way. It is loss without antecedent harm to plaintiff’s person or property.
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