Damages

1. I danni punitivi e la funzione deterrente della responsabilità civile. - 2. I danni punitivi di common law e i danni morali soggettivi di civil law. - 3. I rimedi restitutori e il loro concorso con l'azione di risarcimento del danno. - 4. Le conclusioni

The writing is a comment on a decision of the Italian Supreme Court, in plenary session, about public authority’s precontractual liability (n. 615/2021). It follows other recent judgements, always related to an unfair behaviour of a public entity, by which the so-called culpa in contrahendo does not have extra-contractual nature anymore. It is, on the opposite, governed by the rules of breach of contract. This is since in case of an administrative procedure, as it happens in the other types of precontractual liability, the private party and the public authority are no strangers to one another, but they are linked by a specific legal relationship. And it is not an issue that there is no a contract, because “contractual” liability qualification, as many Italian and foreign authors have clarified, does not refer only to the contractual obligations, but also to any case of obligation, also the ones arise from the good faith. However, the writing points out that the involvement of a public entity makes some differences. First of all, the goal of an administrative procedure is not a contract, as it is in case of private negotiations. But above all public entities, thanks to their status, have a discretionary power related to the administrative action wider than the one of private parties. This means that this power has to be rightly used even more than between private negotiations, and the public authority precontractual liability’s does not concern the administrative action validity, but the procedure before it. It is not by a chance that in the case in front of the Court, the administrative action was not even issued. That is mainly why the authors speak of “pre-action” liability instead of precontractual one, and they highlight the peculiarity of public body’s duties of protection, relating it to damages, as well.

The compensatory damages remedy afforded in Mosley v News Group Newspapers Limited [2008] was inadequate, but also that no remedy could ever, in principle, be adequate, in misuse of private information/breach of confidence cases where the information in question has already been published. Eady J did not err in refusing to award exemplary damages. These would not have been available regardless. Eady J should instead have awarded an account of profits. This remedy was most appropriate given the uncertain foundation of the claim in 2008 (it was unclear whether the claim should be considered in equity or in tort). It is argued that awarding this remedy would strike the best possible balance between the ECHR rights to respect for private and family life (art.8) and to freedom of expression (art.10).

This paper represents a deep analysis of one of the most famous cases of Western law: Donoghue v. Stevenson. Many legal principles arose from the ruling of the House of Lords: privity of contract, duty of care and, above all, negligence clearly considered as a tort.
Moreover, the document contains comparisons with other jurisdictions pertaining the neighbour principle.
Finally, the environmental problem of oil spills in Nigeria is dealt with legal postulates coming from the Donoghue case, purporting to stress the fundamental right to a clean environment for all human beings.

Rekabet ihlalleri dağıtım zincirinin farklı kademelerinde yer alan pek çok kişinin zarar görmesine neden olduklarından yaygın bir zarara sebebiyet verirler. Bu husus tüm bu zarar görenlerin tazminat almaya hakkı olup olmadığına ilişkin soruyu da beraberinde getirir. Zarar görenlerin zararlarını ispat bakımından birbirinden farklı ve bazılarının diğerlerine göre daha zor koşullara tabi olması nedeniyle bu soruya cevap vermek kolay değildir. Özellikle zarar ile rekabet ihlali arasında illiyet bağının kurulması, ihlalden zarar görme şekillerine göre mağdurların tazminat elde etmede karşılaştıkları başlıca güçlüklerden birisidir. Rekabet ihlalinin oluşturduğu şemsiye etkisi nedeniyle zarar gören alıcı grubu, tam da bu noktada zararlarını tazmin etmede zorlanmaktadır. Avrupa Birliği rekabet kuralları çerçevesinde şemsiye etkisi nedeniyle zarar gören bu grubun tazminat hakkının olup olmadığına ilişkin tartışma, çok yakın bir zamanda Avrupa Birliği Adalet Divanının verdiği kararla çözüme kavuşmuş görünmektedir. Bu bakımdan çalışmamız, söz konusu kararın şemsiye etkisinden kaynaklı zararların tazmin edilmesiyle ilgili zorlukları ne ölçüde aşabildiğini tartışacak ve söz konusu etki nedeniyle zarar görenlerin tazminat alma hakkı olduğunu belirtmenin pratikte yol açabileceği olası etkiler üzerinde duracaktır.

1. L'obbligo di protezione previsto dalla disciplina continentale della gestione di affari. - 2. Il raffronto con l'esperienza anglosassone dell'account of profits. - 3. La restituzione dell'arricchimento senza causa e quella del profitto ingiustificato. - 4. Il requisito soggettivo della mala fede

This article outlines how the body produces medically unexplained symptoms (MUS). The BodyMind Approach™ (TBMA™) is a suggested therapeutic intervention for disrupting the expression of MUS. This is discussed in three main sections, each section relating to the previous one. First, the models of dissociation and conversion are expanded from a basis of personal construct psychology in which the body is related to psychological activities. Second, the way to release physical symptoms is to raise the levels of the awareness, in which preverbal constructs and suspended events effecting the generation of MUS are embodied. Third, TBMA™ is proposed as an appropriate treatment intervention. The reasons for this are discussed by explaining how the therapeutic process breaks down dissociation and conversion models.

The article describes typical damages of Bosch Common Rail injectors. It has been detailed the reasons of theirs getting up. It has been accomplished the assessment of defects and extent of uses the injectors elements in aspect of possibilities to repairing and testing theirs on special testers. The results of researches have been presented on charts and the examples have been illustrated additionally.

This paper presents the causes and consequences of mechanical damages in Common Rail (CR) fuel injectors. The analysis included selected components, pointing to the elements and assemblies being most frequently subject to destructive processes.

Bhopal Gas Tragedy being a landmark tort law case consists of matters relating to tort law  such as loss spreading, risk attitude, moral hazard, transactions costs, and cost minimization or social efficiency. In this case analysis mainly bringing out the facts of the tragedy and the importance of Law and Economic View which favors an industry such as the Union Carbide Corporation (UCC) in the objective and also the Social Justice View which speaks in favor of the people of Bhopal.

Die Vorhersehbarkeitsklausel nach dem Modell des Art. 74 des Wiener Kaufrechtsabkommens (CISG) ist eine der wichtigsten vorgesehenen Änderungen der neuen ungarischen Privatrechtskodifikation im Bereich des Schadensersatzrechts.
Es wird von dem Reformvorhaben zu Recht erwartet, dass die gründlich und gewissenhaft ausgesuchten Lösungen mehr Probleme lösen als mit sich bringen. Man hofft ferner, dass die neuen Vorschriften den Grundsätzen der Gerechtigkeit, der Effektivität und nicht zuletzt der Rechtssicherheit gerecht werden und keine größeren Verwirrungen anstiften.
Man muss das Gleichgewicht finden, dass man den notwendigen Ermessensspielraum der Rechtsprechung nicht all zu viel einengt und somit die Flexibilität und die Anpassungsfähigkeit des Schadensrechts auf dem Altar der Berechenbarkeit nicht opfert. Jedenfalls muss man etwas Besseres schaffen als das geltende Recht.
Es wird zu prüfen sein, ob die Vorhersehbarkeit diesen berechtigten Erwartungen entgegenkommen kann. Wenn die Antwort verneinend ist, ist auf die Reform zu verzichten. Jedenfalls pflegt man in der Legislative große Hoffnungen hinsichtlich der Vorhersehbarkeitsklausel.
Der Begriff „Allheilmittel“ kann sowohl mit als auch ohne einen leicht ironischen Beigeschmack verstanden werden. Ist die Einführung der Vorhersehbarkeit wirklich der Balsam für etliche Wunden des Schadensrechts oder lediglich ein Placebo, und die Probleme werden nur reproduziert?

This article delves into the theoretical and practical aspects of proving damages for lost earning capacity in a professional sports career. While the law affords plaintiffs recovery for lost earning capacity damages if they can prove their damages under the amorphous standard of “reasonable certainty,” courts for the most part have failed to delineate any standards for deciphering those particular athlete-plaintiffs who possess the requisite level of athletic skill and potential to be allowed recovery for lost future earnings in a professional sport career. This article addresses how an athlete’s earning potential can be assessed and the various factors that go into the assessment, and in this context the author proposes that it is helpful to think about earning potential on a range that defines low, middle and high categories of athletic potential. The author describes the athlete’s burden of proof as a two-step process. Step one entails proving that the defendant’s conduct did in fact cause the plaintiff a lost or diminished chance of future earnings as an athlete (the factual cause link). Step two entails proving the amount of the lost or diminished chance with reasonable certainty. The author addresses the complexities of the factual causation analysis, including how the loss of chance doctrine and the traditional but for test can be applied to establish the factual cause link, and how evidence and expert witness testimony can be used to meet both burdens of proof and satisfy the admissibility standard of Federal Rule of Evidence 702. Finally, the author explains the methodology, data compilations and calculations he used as an expert witness to estimate Andy Oliver’s lost future earnings in his lawsuit against the NCAA, which highlights the complexities involved in proving lost earning capacity damages of top draft prospect amateur athletes.

I. La nozione di illecito e di responsabilità civile. - II. La fattispecie dell'illecito civile in senso stretto. - 1. Il danno ingiusto. - 2. Il danno patrimoniale e il danno non patrimoniale. - III. Il nesso di causalità. - IV. La colpevolezza del soggetto agente. - V. La responsabilità oggettiva e aggravata. - VI. Le esimenti di responsabilità.

This article highlights several instances when consideration must be paid to the shape of the demand curve, as summarized by the price elasticity of demand, in estimating damages when but-for prices or volumes differ from those in the actual market. While the economic relationship between the quantity demanded (or volumes sold) and price has important implications for quantifying price erosion damages, the “law of demand” is also applicable in other non-patent matters. For instance, when plaintiffs allege higher but-for unit sales in a breach-of-contract matter, the but-for price likely will be lower (all else equal).  An important distinction is that while damages based upon lost profits may be reduced when but-for prices or volumes differ from those in the actual market (and
when price elasticity is considered, the economic harm in price-fixing matters will increase with a higher but-for quantity, due to a lower but-for price, when consumer surplus is the basis for
damages.

This chapter deals with general rules of contract law in various legal systems. It is the chapter 6 of the manual "International Business Law" designed mainly for multinational audiences of students in management. The purpose is to present rules in a sufficiently general manner so as to describe the legal realities that exist in most legal systems,  whereas it is endeavoured to do it with as much substance as possible (i.e. not purely abstractly). To reach this balance, the presentation uses as many international sources as possible.

I. La nozione di illecito e di responsabilità civile. - II. La fattispecie dell'illecito civile in senso stretto. - 1. Il danno ingiusto. - 2. Il danno patrimoniale e il danno non patrimoniale. - III. Il nesso di causalità. - IV. La colpevolezza del soggetto agente. - V. La responsabilità oggettiva e aggravata. - VI. Le esimenti di responsabilità.

Regional seismic scenarios for Venezuelan school buildings are presented, based on a simplified methodology that develops fragility curves to characterize the seismic vulnerability, assess damages, losses and risk levels. The basic hypothesis is that buildings were designed and built in compliance with the seismic code in force at the time of the construction. Adopting a bilinear capacity curve five damage states were defined. The proposed methodology was calibrated by means of comparing the predicted damage with the observed damaged in an
ensemble of school buildings affected by the 1997 Cariaco earthquake. A computational tool based on GIS to estimate damages and losses associated with a particular seismic event was developed, using modern seismic attenuation relationships. Seismic risk based on seismic hazard maps is also determined, which facilitates the task of prioritization for structural retrofitting decisions. The computational tool was applied to the evaluation of three regional scenarios.

This paper studies the reasons why the people try to cheat and fraud on insurance companies in Albania. It is represents an overview from the first time of fraud phenomen started. It is showed by the results of the survey how individuals in Albania behave and how do they percept the insurance companies. The survey is conducted on Albanian citizens in the five largest cities. Insurance fraud is a global criminal phenomen, sometime is a part of the companies themselves, and unfortunately we find that it is the case of Albania also. The study approaches into a flat view, analyzing the insurance fraud such as an integral part of financial crime, sometimes as a part of mafia network, sometime as a factor that, but has made deeper the global criminal crisis and the Albanian crisis.

Abstract:-The paper presents a new method to detect damages in beams and assess their location and severity by means of vibration measurements. Typically, changes in natural frequency of beams are relatively small, even for an important reduction of their cross-section; this is one of the major difficulties in locating damages in this way. Our research takes into account the particular manner in which the natural frequencies of the first ten bending modes change due to the occurrence of damage. It is a pattern recognition ...

This paper studies the reasons why the people try to cheat and fraud on insurance companies in Albania. It is represents an overview from the first time of fraud phenomen started. It is showed by the results of the survey how individuals in Albania behave and how do they percept the insurance companies. The survey is conducted on Albanian citizens in the five largest cities. Insurance fraud is a global criminal phenomen, sometime is a part of the companies themselves, and unfortunately we find that it is the case of Albania also. The study approaches into a flat view, analyzing the insurance fraud such as an integral part of financial crime, sometimes as a part of mafia network, sometime as a factor that, but has made deeper the global criminal crisis and the Albanian crisis. DOI: 10.5901/mjss.2015.v6n3s1p21

A suit for compensation for breach of contract upon withdrawal of sub-contractor's bid before submission of the contractor's bid.
A sub-contractor submitted his bid to a contractor, who wanted it for making an estimate for submitting his own bid. Before the contractor could submit his bid, the sub-contractor realised a mistake, and withdrew his bid. The contractor obtained a bid from another sub-contractor, and completed the work, and filed a suit for recovering compensation alleging that there was a contract formed by the sub-contractor's bid.
Click or copy this link for the case : https://obiterdictadotin.files.wordpress.com/2019/06/mercury-builders-v-earth-movers.pdf

Dans notre réflexion sur les liens entre réalisme et fiction, il semble particulièrement intéressant d’analyser ceux qui sont à la base de toute série : les héros. En une décennie, la représentation du héros a bien changé. Sombres, extrêmes, amoraux, les antihéros ont ainsi détrôné les anciennes figures héroïques, archétypes de perfection et de valeurs. Même si on les trouve déjà dans les séries des années 1970, le Lieutenant Columbo apparaît comme l’un des pionniers, leur nombre a explosé ces dernières années si bien qu’on les trouve partout, dans tous les genres, aussi bien dans la série judiciaire (Damages) que policière (24 heures chrono), voire même dans des genres plus comiques (Chuck).

Pour appréhender ces nouveaux héros, nous essaierons d’établir une typologie des grands archétypes d’antihéros. Nous nous questionnerons aussi sur cette soudaine poussée des antihéros dans un contexte – celui du post-9/11 – qui semble a priori davantage propice au patriotisme et à l’héroïsme fantasmé. Cela nous mènera à considérer les antihéros comme partie de cette mouvance réaliste qui a marqué les séries contemporaines. Car, en présentant des personnages faillibles et ambigus, les scénaristes nous renvoient notre propre image. Le processus d’identification se développe à tel point que nous en arrivons à éprouver de la sympathie pour des tueurs en série (Dexter) ou des policiers véreux qui n’ont plus de morale (The Shield). Pour soutenir ce désir de proximité entre le spectateur et l’antihéros, nous serons amenés, en outre, à étudier les nombreux procédés narratifs et techniques que les séries proposent. Autant d’artifices qui rendent toujours plus floue la frontière entre réel et fiction.

The article deals with the enforcement of judgments of the European Court of Human
Rights in domestic systems, and particularly with the advisability of a provision that allows
the review of a final judgment at domestic level when the Court found that judgment in
violation of the Convention. The most relevant provision is Article 46 of the Convention.
After showing how the way Article 46 is construed influences the protection of fundamental
freedoms (I), the article focuses specifically on Italy, that - unlike other countries - has never
provided fo r any form of review of its final judgments in order to comply with Article 46.
Though recently the courts have started filling this gap in the law (II).
The thesis is that the only way to comply with Article 46 is to allow a review and an
immediate suspension o f the enfo rcement o f a ju dgment, with no conditions and for any
kind of proceeding, whenever the Court found it was in violation of the Convention (III).
Then, the article contrasts the proposed approach to the bills on the matter pending before
the Italian Parliament (IV), and conclu des by arguing that the proposed legislative refor m
is advisable both for Euro pean federa lists and for 'Eurosceptics' (V).

This paper reviews issues related to estimating property value effects from contaminated sites. Industrial economies release millions of chemicals into air, soil and water with adverse effects on human health, other species, future community economic development and private property values. Hundreds of thousands of parcels are damaged by contamination in the United States. Both private property rights and public goods are affected. Greenfield Advisors (formerly Mundy Associates), a Seattle based appraisal, specializes in assessing damages to real estate values resulting from contamination, often serving as expert witnesses in litigated cases. These valuations may require both cross sectional spatial analysis of contamination effects and time series analysis to assess how contamination and stigma play out over time. Cases begin with science respecting the environmental fate and remediation of particular contaminants and their human health consequences and effects on air, soils, water...

This article delves into the theoretical and practical aspects of proving damages for lost earning capacity in a professional sports career. While the law affords plaintiffs recovery for lost earning capacity damages if they can prove their damages under the amorphous standard of “reasonable certainty,” courts for the most part have failed to delineate any standards for deciphering those particular athlete-plaintiffs who possess the requisite level of athletic skill and potential to be allowed recovery for lost future earnings in a professional sport career. This article addresses how an athlete’s earning potential can be assessed and the various factors that go into the assessment, and in this context the author proposes that it is helpful to think about earning potential on a range that defines low, middle and high categories of athletic potential. The author describes the athlete’s burden of proof as a two-step process. Step one entails proving that the defendant’s conduct did in...

When assault and death in custody had occurred, and the evidence strongly suggests that the assault and death are caused by police brutality, the wrongful exercise of their powers, or negligence, then the family members are entitled to sue the police officer and government over the assault and custodial death. In this article, the writer will study the civil suit commenced arising out of assault and custodial death by exploring the causes of action, assessment of damages, proceedings against government and judicial responses in this area.

There is a sharp divide between investment arbitration practitioners
on the permissibility of using ex post or hindsight information in the valuation of
damages. Ex post information comprises facts that arise after the date of breach
or submission of the dispute to arbitration, but before the tribunal reaches its
quantum award. Faced with real facts that show a glaring discrepancy between
the hypothetical value of the investment and the real present day value, it is
understandably difficult for tribunals to ignore the real facts before them. Both
options seem like an injustice: to award a windfall sum that is significantly larger
than the investor would have earned from the investment otherwise; or to award
a paltry sum significantly smaller than the investor would have earned according
to the parties’ expectations at the time. Does customary international law permit
factoring ex post information into an investment valuation? This article shows
that the latest Quiborax v Bolivia decision and dissenting opinion is not the first
tribunal to have dealt with ex post information. The principles in Chorzów Factory
will be carefully analysed, to light the way to a clear and reasoned approach to
taking into account ex post information in investment valuations.

The subject's approach is required also because, once adopted the New Civil Code, it acquired a new juridical frame, but also a new perspective. A common law creditor who does not obtain the direct execution of his obligation is entitled to be compensated for the damage caused by the non-execution with an amount of money which is equivalent to the benefit that the exact, total, and duly execution of the obligation would have brought the creditor. 1. General aspects on the notion The stipulation of the concept and market economy, in Art. 135 of the Constitution, leads to the reanimation of the economic relationships which are more and more frequently used through contracts. Signing a contract is considered to be a consequence of at least two contractual partners who express their will and that is why it is also submitted to the principle of good faith, as it is provided in Art. 14 of the Civil Code: " Any natural or legal person must exert her rights and perform her civil obligations in good faith " , which is presumed until proven otherwise. Since equality between the two contractual partners is sometimes fictitious, it is deemed that a contractor who would use his economic power, superior ability in order to impose obligations to his partner whose value is to be in disproportion compared to the advantages that the partner would obtain from the contract, situation which would impose the rehabilitation of the contractual equilibrium. When the contractual debtor performs the labour conscription he owns to the creditor, the obligation will end; if not, the contractual creditor is entitled to ask the debtor for the discharge in kind of the labour conscription he has undertaken according to Art. 1516, par. 1 civil code, which also represents the seat of the complete repair of prejudice, which specifies: The creditor is entitled to the complete, exact and duly execution of the obligation. From the legal text is understood that the execution in kind of the obligations implies the execution of the very labour conscription the debtor has undertaken and according to the object considered by both parties, the debtor is unable to replace the object with another type of labour conscription, without the creditor's consent. This principle is line with the doctrine, but also with the settlement of the Civil Code of 1864, where in Art. 1073 was acknowledged the right of the creditor to obtain the exact execution of the obligation, if not he had the right to compensation. According to the new civil code, when the debtor does not willingly execute the obligation provided in the contract, according to Art. 1527, he may recourse to forced execution: The creditor can always ask for the debtor to be obliged to execute in kind the obligation, except for the case when such a execution is impossible (par. 1), the right to discharge in kind includes, if applicable, the right to repair or replace the good, as well as any other means to remediate a faulty execution (par. 2). If the forced execution comprises obliging the debtor to an execution in kind when restoring the parties to the situation prior to the unlawful fact, or the creditor is no longer presenting interest for such a situation, he can obtain an equivalent execution. In order to repair the damage created by the debtor by not discharging the obligation, the inappropriate or late execution entitle the creditor to ask the repair of the damage called: indemnity, compensation, or recovery of damages, which actually represent the loss he suffered, and the benefit he was deprived of. Both the doctrine and judicial practice define the recovery of damages as being:

The rules of extra-contractual liability did not remain unaffected by the overwhelming reform of the Hungarian private law, which resulted in the codification of the New Civil Code in 2013. According to the Statement of Reasons provided by the legislator, the amendments and changes in this field set the following three objectives. The first was to incorporate those liability rules which were already part of the legal system but had been accommodated by other acts so far (for example, the rules on product liability or environmental damage). The second goal was to include the sound solutions developed in the 'judge-made law' , i.e. by the case law of the court practice. Finally, the legislator's ambitions also covered the introduction of new rules and solutions (partly transplanted from other legal systems) in order to give satisfactory answers to problems of liability law which before could be provided neither by the legislator nor by the case law (for example the foreseeability doctrine, alternative liability and Non Cumul, i.e. the exclusion and prohibition of parallel damage claims on the basis of extra-contractual liability between contracting parties). Paradigmatic changes can hardly be envisaged; however, some amendments are significant enough to raise questions on the justification, efficacy and usefulness of the new rules and tools. After a short introduction giving an overview on the structure and basics of extra-contractual liability (I) as regulated by the new Hungarian Civil Code (Act V of 2003 on the Civil Code, hereinafter referred to as NHCC), we analyse the amendments of the rules on extra-contractual liability by posing five questions, provocative to some extent (II): 1 Did we really codify the case law? 2 Do we really know what the 'new' tools are for? 3 Are the 'new tools' really necessary? 4 Did we tie up all of the loose ends? 5 Did we consider all the risks and side-effects? This critical 'questionnaire' is followed by a short summary on our conclusions (III).