REMEDIES FOR DAMAGE TO PROPERTY: MONEY DAMAGES OR RESTITUTION IN NATURA?

In spite of the great volume of law and economics research carried out in the field of tort law, there exists a gap in the literature concerning the effects of different tort remedies, namely money damages and restitution in natura. Although there is a parallel between the above mentioned remedies and the remedies for breach of contract, i.e. money damages and specific performance, the analysis of the latter does not apply in torts; the high transaction costs involved in such involuntary transactions bring about fundamental changes in it. The aim of this paper is to perform a comparative analysis of money damages and restitution in natura from an efficiency perspective. The basis of the comparison is the relation of each of the remedies to the 'ideal' compensation, which, at least in principle, corresponds to the subjective accident loss for the victim. According to the conclusion reached, no rule is generally preferable to the other. Thus, it is crucial to sort the different types of cases and apply the remedy which is better suited to each one of them. The normative proposition derived is that judges should be granted the discretion to decide on the adequate remedy on a case-to-case basis. On this premise, I proceed to a comparative analysis of the relevant legal rules in Germany, England, Greece, and France, since each legal system tackles this issue differently.

Crossing the Abyss: A Comparative Analysis of the Enforceability of Preliminary Agreements

A major unresolved issue in international business transactions relates to the enforceability of preliminary agreements. Preliminary agreements cover a long list of instruments commonly used in most sectors of the economy. The common presumption is that these agreements are not enforceable. The correct answer is much more nuanced. For example, a preliminary agreement may be held to be unenforceable but at the same time be the basis for legal liability. There are strong differences between the civil and common laws on the issues of good faith negotiations and the enforceability of preliminary agreements, but there is also sustained uncertainty within legal systems. This article reviews Chinese, French, German, and Anglo-American law on the twin issues of enforceability and liability. It shows that the trend has been in favor of greater judicial scrutiny of such agreements that has led to greater enforceability and the expansion of available remedies, whether an agreement is deemed to be enforceable or unenforceable. The issue of preliminary agreements and their place in the overall legal scheme has become less clear as courts have recognized their necessity as modern contract transactions have become more long-term and complex. The countries selected for review provide a three-part taxonomy. First, preliminary agreements are unenforceable due to the lack of certainty of terms and party intent. Second, preliminary agreements that are detailed may be recognized as enforceable contracts. Third, there is a broad middle area in which preliminary agreements are unenforceable as a whole but can be the basis for liability for independent obligations found in the agreements. These independent obligations include an implied-in-law or an implied-in-fact obligation to negotiate in good faith, duty of confidentiality, and duty of exclusivity to not negotiate with other parties. It is in this middle area where there has been a convergence in legal systems and, at the same time, where the issues of liability and remedies have become more uncertain. Because of the ubiquity of these agreements, the possibility of unexpected liability remains pronounced in international business negotiations

Regulating Surrogacy: Chances and Pitfalls

Surrogacy raises admittedly a series of concerns, but it is also a reality and, as long as there are persons who cannot have children in a different way, this will not change. Its prohibition at a global level is both unfeasible and unenforceable, while its non-regulation reads to legal uncertainty. Pragmatic considerations call for the regulation of surrogacy; not because pragmatism overrides ethics, but because a good regulation, one that balances the interests of all parties involved, not only on paper but also in practice, can successfully address most of the concerns about surrogacy. In 2002 Greece was the first European country to introduce a comprehensive regulatory scheme for surrogacy, followed by Cyprus in 2015 and Portugal in 2016.Drawing mainly on these jurisdictions, the aim of this paper is to shed light into the alternative patterns of regulation of surrogacy and point out the chances and pitfalls of such an endeavour. I argue that the main points around which a surrogacy regulation should revolve are: allow for gestational surrogacy only; set eligibility criteria for both the intended parents and the surrogate; provide for monitoring mechanisms that oversee the whole process; establish legal parenthood of the intended parents already at birth. To ensure the success of the regulation, the lawmaker should stay clear of too restrictive or practicably unenforceable rules

Causation in European Tort Law

Through a comprehensive analysis of sixteen European legal systems, based on an assessment of national answers to a factual questionnaire, Causation in European Tort Law sheds light on the operative rules applied in each jurisdiction to factual and legal causation problems. It highlights how legal systems' features impact on the practical role that causation is called upon to play, as well as the arguments of professional lawyers. Issues covered include the conditions under which a causal link can be established, rules on contribution and apportionment, the treatment of supervening, alternative and uncertain causes, the understanding of loss-of-a-chance cases, and the standard and the burden of proving causation

Crossing the Abyss: A Comparative Analysis of the Enforceability of Preliminary Agreements

A major unresolved issue in international business transactions relates to the enforceability of preliminary agreements. Preliminary agreements cover a long list of instruments commonly used in most sectors of the economy. The common presumption is that these agreements are not enforceable. The correct answer is much more nuanced. For example, a preliminary agreement may be held to be unenforceable but at the same time be the basis for legal liability. There are strong differences between the civil and common laws on the issues of good faith negotiations and the enforceability of preliminary agreements, but there is also sustained uncertainty within legal systems. This article reviews Chinese, French, German, and Anglo-American law on the twin issues of enforceability and liability. It shows that the trend has been in favor of greater judicial scrutiny of such agreements that has led to greater enforceability and the expansion of available remedies, whether an agreement is deemed to be enforceable or unenforceable. The issue of preliminary agreements and their place in the overall legal scheme has become less clear as courts have recognized their necessity as modern contract transactions have become more long-term and complex. The countries selected for review provide a three-part taxonomy. First, preliminary agreements are unenforceable due to the lack of certainty of terms and party intent. Second, preliminary agreements that are detailed may be recognized as enforceable contracts. Third, there is a broad middle area in which preliminary agreements are unenforceable as a whole but can be the basis for liability for independent obligations found in the agreements. These independent obligations include an implied-in-law or an implied-in-fact obligation to negotiate in good faith, duty of confidentiality, and duty of exclusivity to not negotiate with other parties. It is in this middle area where there has been a convergence in legal systems and, at the same time, where the issues of liability and remedies have become more uncertain. Because of the ubiquity of these agreements, the possibility of unexpected liability remains pronounced in international business negotiations

Judges as satisficers: a law and economics perspective on judicial liability

Bounded rationality, Judicial errors, Civil, disciplinary and penal liability, Political accountability, Criteria for decision-making under risk and uncertainty, K13, K40, J41, D8,