Philosophy of Law.docx

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 is rigid. Aristotle Corrective law: tort law, private law Distributive law: distributing greater good Utilitarian Emmanuel Kant 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 b. Standard c. Breach d. Causation e. Damage (decent of this case) Readings for next week:  Standard of care (Bolton v. Stone, Paris V Stepney)  Remoteness  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 vs. Flannigen 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‖ - ―binding‖ - ―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’ impairment - appeal, trial court, small claims court, supreme court of Canada 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 proven liable negligence 1. duty of care 2. standard of care 3. breach of standard 4. causation 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 tort law. Snider Case  Sues person for the post traumatic stress disorder (defendant is dead, however)  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  Snider’s liability  Foreseeable  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 Contract law What is a contract?  Legal consequences if you don’t fulfill your agreement  Voluntary agreement between two or more parties/people  ―legally enforceable‖  ―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 either way  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  offer  acceptance  consideration (value: this for that, benefit given/detriment suffered)  capacity  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