Altruism in Private Law: Liability for Nonfeasance and Negotiorum Gestio

Hardcover | May 12, 2005

byJeroen Kortmann

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This book examines two problems in Private law which are posed by the 'good Samaritan': First, do we have a legal duty to give aid to our fellow human beings? In particular: can we be held liable for damages if we fail to do so? Second, if we do come to the rescue, as the good Samaritan did,will we have any claim for the expenses that we incurred, or perhaps even for a reward? Kortmann examines and compares the varied responses of the Roman, French, German, and English legal systems to these problems, providing the first comprehensive treatment of English law in relation to 'liabilityfor nonfeasance' (or 'liability for omissions') and 'negotiorum gestio' (or 'the doctrine of necessity'). In Part I, Kortmann examines English law which draws a distinction between action and inaction, or 'feasance' and 'nonfeasance'. In general, one is not held liable for failing to act. He explores the theoretical justifications for drawing this distinction and reveals through a short comparativesurvey the fundamentally different approaches taken in France and Germany, concluding that the English rule of no liability for nonfeasance requires a reconsideration.In Part II the English approach to the problem of reimbursement or reward is examined, detailing its profound differences from the Continental European approach. In principle, English law does not grant the necessitous intervener a claim against the beneficiary of his intervention. Kortamnn examinesthe theoretical justifications for assuming this position and again concludes that the law deserves reconsideration.Finally, Kortmann concludes by demonstrating close interconnections between the two, traditionally independent issues. He argues that the law ought not to introduce a general duty to intervene without at the same time granting the intervener a claim, at the very least for reimbursement of expensesand compensation of any loss suffered in the course of the intervention.

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This book examines two problems in Private law which are posed by the 'good Samaritan': First, do we have a legal duty to give aid to our fellow human beings? In particular: can we be held liable for damages if we fail to do so? Second, if we do come to the rescue, as the good Samaritan did,will we have any claim for the expenses that ...

Jeoren Kortmann has been a lecturer in Roman Law at The Queen's College, Oxford and is at present Attorney at Law at Stibbe, Amsterdam, and a member of the Amsterdam Bar.
Format:HardcoverDimensions:232 pages, 9.21 × 6.14 × 0.71 inPublished:May 12, 2005Publisher:Oxford University PressLanguage:English

The following ISBNs are associated with this title:

ISBN - 10:0199280053

ISBN - 13:9780199280056

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Table of Contents

PART I: LIABILITY FOR NONFEASANCEI. INTRODUCTIONII. WHAT IS 'NONFEASANCE'?III. THEORETICAL JUSTIFICATIONS FOR DISTINGUISHING BETWEEN FEASANCE AND NONFEASANCEIV. LIABILITY FOR NONFEASANCE IN CONTINENTAL EUROPEAN PRIVATE LAWV. LIABILITY FOR NONFEASANCE IN ENGLISH PRIVATE LAWVI. TOWARDS A MORE CONSISTENT APPROACHPART II: GRANTING A CLAIM TO THE INTERVENERVII. THE DIFFERENT MEASURES OF RECOVERY AND THEIR TERMINOLOGYVIII. THEORETICAL ARGUMENTS AGAINST GRANTING A REMEDY TO THE INTERVENERIX. THEORETICAL ARGUMENTS IN FAVOUR OF GRANTING A REMEDY TO THE INTERVENERX. THE CONTINENTAL DOCTRINE OF 'NEGOTIORUM GESTIO'XI. THE POSITION IN ENGLISH LAWXII. TOWARDS A GENERAL PRINCIPLE: USING THE EXISTING DOCTRINES?XIII. TOWARDS A NEW GENERAL PRINCIPLEEPILOGUE