Private Law and the Value of Choice

ISBN-13: 9781509929740 / Angielski / Miękka / 2019 / 272 str.

Emmanuel Voyiakis

Opis

Some say that private law ought to correct wrongs or to protect rights. Others say that private law ought to maximise social welfare or to minimise social cost. In this book, Emmanuel Voyiakis claims that private law ought to make our responsibilities to others depend on the opportunities we have to affect how things will go for us. Drawing on the work of HLA Hart and TM Scanlon, he argues that private law principles that require us to bear certain practical burdens in our relations with others are justified as long as those principles provide us with certain opportunities to choose what will happen to us, and having those opportunities is something we have reason to value. The book contrasts this `value-of-choice' account with its wrong- and social cost-based rivals, and applies it to familiar problems of contract and tort law, including whether liability should be negligence-based or stricter; whether insurance should matter in the allocation of the burden of repair; how far private law should make allowance for persons of limited capacities; when a contract term counts as `unconscionable' or `unfair'; and when tort law should hold a person vicariously liable for another's mistakes.

Spis treści

1. Private Law and the Burden of Repair I. Original Burdens and Burdens of Repair II. A ‘Direct’ Account of the Burden of Repair III. The Significance of Wrongfulness IV. Repair Without Wrongfulness or Corrective Justice 2. Responsibility, but the Right Kind I. Substantive and Attributive Responsibility II. Private Law Principles as Allocations of Substantive Responsibilities III. Some Implications of the Attributive/Substantive Divide IV. A Progress Report 3. Choice and Responsibility I. The Value of Choice and the Asymmetry between Benefits and Burdens II. Making a Choice vs having a Choice III. Two Sets of Objections IV. From the Value-of-choice Account to Models of Private Law 4. Protection Against the Burden of Repair I. Why Protection? II. Protection as a ‘Bail Out’ and as a Condition of Responsibility III. Protection as a Condition of Responsibility: A Preview IV. Working Examples and Variations V. The Protection Principle VI. Comparing Notes: Other Accounts of Contributory Negligence VII. Protection and the ‘Background Conditions’ of Choice 5. Avoidability I. Exercise of Care as an Objection to Liability II. Rylands v Fletcher and Doing Things on One’s Own Terms III. Limited Capacities and the Standard of Care IV. Negligence Liability and the UK SARAH Act 2015 V. Conclusion 6. Contracts and the Social Structure I. The Classical Story and Its Limitations: Scanlon’s EL and EF Principles II. A Structure-sensitive Alternative: The EFS Principle III. Three Objections IV. Contract Doctrine in the Light of the EFS Principle V. ‘Fair Terms’, Justice, and Opportunity 7. Vicarious Liability I. Participation and Placement II. The Significance of Placement III. Participation and Attribution IV. An Illustration: Vicarious Liability for the Use of Cars V. Vicarious Liability as Protection VI. Liability for Protection vs Direct Liability VII. Conclusion