Philosophy of Law: Lecture 3 9/26/2012 3:12:00 PM
Legislations: different than judication ―broad based social policy objective‖
In Canada and UK, tort law is essentially private law
Jurisprudence: what judges do
Legal realists: school of thought.. when people started to criticize what the
judges are doing… Judges are subjective in their decision, just like everyone
else. They find a way to rationalize their decision by using case law.
Case law: is it the right answer?
Positivistic: law is what is written. A rigid way of looking at law. Common law
Corrective law: tort law, private law
Distributive law: distributing greater good
Case (Donoghue V. Stevenson) Scotland 1932
Her friend purchased a bottle of ginger beer (it was given to her for free)
Drank half the bottle, and shortly after poured the second half. A
decomposed snail fell out of the bottle.
She felt sick after and sued the manufacture of the ginger beer.
No case law based on ginger beer, café, and decomposed snail.
Looked to the bible; ―duty not to injure your neighbor‖ –who is your
neighbor? [someone who is closely related]
Foreseeable—―ought‖ ―should‖ and ―objective‖
You can’t defend a negligence case by saying ―well… I should’ve.‖
Stupidity is irrelevant. Imposed objective stand.
What would’ve a reasonable person have done?
Proximity—are they causally close? (causal issues)
Case (Palsgraf V. Long Island R. Co)
Risk is relational Foreseeable injury
Two porters are trying to attempt to help a guy get on the train.
The guy was carrying fireworks wrapped in newspaper. While getting on
the train, fireworks exploded and caused a weighing scale to fall, then
injured a women.
She was 30 feet away. She sued for ―negligent conduct‖ of the railroad
employees of the railroad company
Won trial and the appeal… Finally at supreme court of the state
She claims that the injury was foreseeable.
Did the railroad workers know that there was fireworks in the newspaper?
No. therefore not negligent. Risk is relational.
Careless the way they pleaded the case
Risk to be perceived (the actual risk that is foreseeable will tell us if
there’s a duty)
Question of liability (is there a duty of care) is always anterior (first
question to ask) to the
Order of these questions is very important in tort law:
a. D of C
e. Damage (decent of this case)
Readings for next week:
Standard of care (Bolton v. Stone, Paris V Stepney)
Causation Lecture 5 9/26/2012 3:12:00 PM
1. No duty to rescue—unless
2. If you start no duty to complete—unless
3. If you start AND attempt is negligent would be rescuer may be liable
IF negligence’s causes/worsens situation of peril
4. rescuee owes duty of care to would—be rescuer—unless rescue attempts
is obviously futile and reckless
Next week: reibl vs. Hughes; coocker vs. Sundance; CNR vs. Norsk; Borell
Hard cases make bad law
Insurance isn’t supposed to have any impact on tort law, however, it does.
Loss spreading: insurance Philosophy of Law 9/26/2012 3:12:00 PM
What is law?
- rules that are enforceable by the state
- common law: ―judge made law‖ made in England,
- precedents ―Stare Decisis‖
- ―ratio decedendi‖ –reason for the decision
- obiter dicta—things said, by the way.
- Reasons vs. things said
Common law vs. Civil Code (Quebec)
- hierarchical structure of court
- codified and statute (civil code) written to clarify and
correct what common law cannot do
- statues are enactments laws created by politicians’
- appeal, trial court, small claims court, supreme court of
tort law ―actionable law‖
- cases where you can ―sue‖
- private law
- guilty equals liable
- tort is either intentional or unintentional (negligence)
- intentional: ―actionable per se‖ harm isn’t necessary to be
1. duty of care
2. standard of care
3. breach of standard
5. damage must be proven by cause
loss spreading vs. loss fixing
loss spreading is an American principle
loss fixing is adhering to legal principles (finding out whose fault it is by
identifying its cause) used in United Kingdom and Canada 9/26/2012 3:12:00 PM
Lacking legal capacity must be proven in the same way in both contract and
Sues person for the post traumatic stress disorder (defendant is dead,
Not negligent for driving
People who gave him wine is not negligent since the damage is too
remote to be the ―causation‖
―duty of care‖ is owed by 2 friends. They ought to have known that he
would have been in danger
Plaintiff asked for loss of wages, future medical care, future loss wages,
30% contributory negligence
no causal between plaintiff and Snider
indirect cause is still a cause
wisdom of solid is not Contract Law: November 7 th 9/26/2012 3:12:00 PM
What is a contract?
Legal consequences if you don’t fulfill your agreement
Voluntary agreement between two or more parties/people
―did the parties themselves successfully create a contract? Did they
create a legally binding agreement‖
element of contract: complete, written/oral,
doesn’t necessarily have to be in writing
simple contract: oral/verbal, or can be in writing. They’re enforceable
formal contract: must be in writing to be enforceable. Can be found in
statutes of fraud (ex. Real estate, interest in land contract to be
enforceable, guarantee of someone’s else’s debt)
Elements of Contract
intention to create legal relation
consideration (value: this for that, benefit given/detriment suffered)
consensus ad idem (meeting of the minds—parties sit down and negotiate
some kind of agreement
Offereor- who makes the offer (in offer)
Offeree- who accepts/declines offer
Promisee-One to whom a promise has be