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  • >> "What is Torts?

  • "And what Torts is not."

  • A tort is a wrongful act, other than a breach of contract,

  • that results in injury to another party's person,

  • property, dignity, or reputation,

  • and which is recognized by statute or common law

  • as a legitimate basis for liability.

  • In other words, torts is the law of civil wrongs.

  • Now, this definition raises some important distinctions

  • that are worth addressing before we move on.

  • Civil or criminal cases,

  • common law or statutory law,

  • tort or contract.

  • Let's go through these one by one.

  • Civil or criminal cases.

  • Like contracts and property,

  • tort law provides for civil rather than criminal liability.

  • There are some crucial distinctions here

  • having to do with, one, who the parties are--

  • plaintiff as opposed to prosecutor.

  • Two, what the possible outcomes are--

  • liable as opposed to guilty.

  • Three, the applicable standard of proof--

  • preponderance as opposed to beyond a reasonable doubt.

  • Four, the consequences for the defendant--

  • civil damages as opposed to criminal penalties.

  • And five, the procedural rules that apply--

  • civil procedure as opposed to criminal procedure.

  • First, torts are disputes between private parties.

  • In a tort action, the injured plaintiff brings suit

  • against the defendant for damages,

  • whereas in a criminal action, the prosecutor,

  • acting on behalf of the government,

  • charges the defendant with a crime.

  • The injuries on which a claim of tort liability is based

  • might also form the basis of a criminal action.

  • But the two cases would be initiated

  • by different parties, and would proceed separately.

  • For example, O.J. Simpson

  • was tried by a prosecutor on two counts of murder--

  • People of the State of California v. Simpson--

  • and acquitted... AKA, found not guilty.

  • He was also sued by the families of Nicole Brown Simpson

  • and Ron Goldman for wrongful death--

  • Goldman v. Simpson-- and found liable.

  • In some, criminal cases are the people

  • represented by the prosecutor v. defendant,

  • and tort suits are plaintiff v. defendant.

  • Second, notice that the possible outcomes

  • are also different.

  • In criminal cases, the defendant

  • is found guilty or not guilty.

  • In tort suits, the defendant is liable or not liable.

  • Third, the standard of proof is different.

  • In a criminal case, the standard of proof

  • is beyond a reasonable doubt,

  • but in a civil case,

  • the standard of proof, with a few narrow exceptions,

  • is a preponderance of the evidence.

  • The preponderance standard has been interpreted

  • to mean that the finder of fact must be convinced

  • that the plaintiff's assertions

  • are more likely than not accurate.

  • Some courts have quantified this as more than 50% likely.

  • The difference between the civil and criminal

  • standard of proof might explain the divergence

  • between the criminal and civil Simpson cases.

  • Fourth, the consequences for the defendant are different.

  • If a criminal defendant is found guilty,

  • the penalties might include death,

  • imprisonment, or criminal fines.

  • In a tort suit, if the defendant is found liable,

  • the most common remedy is that the court

  • will order the defendant to pay damages.

  • Though, in some cases, equitable relief may be available,

  • meaning that the court can issue an injunction,

  • ordering the defendant to take or refrain from certain actions.

  • Typically, criminal fines are paid

  • by the dependent to the government.

  • Civil damages are paid by the defendant to the plaintiff.

  • Finally, the procedural rules are also different

  • for civil as opposed to criminal cases,

  • meaning civil procedure as opposed to criminal procedure.

  • There are two types of law that can form the basis

  • of civil liability-- common law or statutory law.

  • When you think of law, you probably think

  • of statutes passed by legislatures--

  • the U.S. Congress,

  • the State Legislature, or the City Council--

  • and signed into law by executives--

  • the President, Governor, or Mayor.

  • Sometimes, these statues include private causes of action,

  • meaning that the statute includes a provision

  • allowing private parties to sue each other

  • to enforce the rights recognized in that statute.

  • For example, employment discrimination law

  • is now dictated largely by statutes.

  • Those statutes typically create private causes of action,

  • allowing employees who believe

  • that they have been discriminated against

  • to sue their employers for violating the law.

  • The rules and standards that a court would use

  • to adjudicate such a dispute

  • are derived from the statute itself.

  • Like contracts and property, tort law is primarily

  • a common law subject,

  • meaning that it is primarily judge-made

  • rather than legislature-made.

  • Most of tort law has evolved

  • through thousands upon thousands of court decisions

  • arising out of individual disputes.

  • The holdings of these individual court decisions

  • are treated as precedents, which are then applied

  • to future disputes that arise within the same jurisdiction.

  • It's worth noting that, particularly in torts,

  • the common law and statutory law

  • interact with each other in a few important ways.

  • First, in many jurisdictions,

  • at least part of the common law of torts-- created by judges--

  • has been codified into statutory law

  • at some point by the legislature.

  • Often the legislature effectively ratifies the rules

  • that judges have developed over time.

  • In the absence of this kind of ratification,

  • judge-made rules are still valid...

  • but when the legislature has codified an area

  • of common law, attorneys and judges must look

  • to the relevant statute first,

  • not merely to the applicable precedents

  • or restatement sections.

  • Second, the legislature has authority,

  • pursuant to constitutional restraints,

  • to reject the rules and standards

  • adopted by the judiciary.

  • You can think of the judiciary and the legislature

  • as being in conversation with each other.

  • If the judiciary recognizes a common law rule

  • that the legislature doesn't like,

  • the legislature is free to pass a statute

  • adopting a different rule,

  • and judges are then bound by that legislative pronouncement

  • in future cases.

  • The common law cause of action, or rule,

  • is said to have been "preempted by the legislature."

  • Third, if the legislature has passed a statute

  • that is relevant to a tort dispute,

  • but does not actually preempt the common law cause of action,

  • the courts might take that legislative pronouncement

  • into account, particularly when applying common law rules

  • that implicate policy considerations.

  • Tort or contract.

  • Within civil common law liability,

  • there is also an important distinction

  • between tort liability and contract liability.

  • Remember, the definition of tort excludes breaches of contract.

  • One useful way of thinking about the distinction

  • between torts and contracts is that contract law

  • governs the creation and enforcement of agreements,

  • where as tort law dictates the relationships

  • between parties who have not previously agreed

  • to a set of rules that will govern

  • their dealings with each other.

  • For example, I bump into you on the sidewalk,

  • knocking you into oncoming traffic

  • causing you various injuries.

  • We've never met before, so we haven't had an opportunity

  • to agree to the rules that will dictate

  • whether I must compensate you for those injuries.

  • Tort law provides a set of default rules

  • which govern our interactions.

  • In other situations, two parties have had the opportunity

  • to agree to a set of obligations between them

  • that will govern their dealings,

  • or at least some aspect of those dealings.

  • If I fail to fulfill an obligation

  • that I have agreed to,

  • then I might be liable for breach of contract.

  • For example, imagine you and I have entered

  • into a contract whereby I agree to transport

  • a shipment of laptop computers from your manufacturing plant

  • to your distributor across the country.

  • If those laptops are damaged during shipping,

  • you might sue me for breach of contract.

  • In adjudicating our dispute,

  • the court would look first to the contract between us.

  • In our contract, we might have agreed

  • to a set of rules that differ from the default rules

  • found in the law of torts.

  • This is known as "contracting around

  • "the tort law default rule."

  • Alternatively, our contract might be silent

  • as to whether I am liable for damage

  • that occurs during shipping.

  • In that case, the tort law default rules will apply.

  • Note that a plaintiff can combine tort and contract

  • causes of action in a single civil suit.

  • This often happens with regard to harms caused

  • by defective consumer products, for example.

  • If I am injured by a defective blender

  • that you sold me, I might bring suit

  • for breach of warranty, a contract cause of action,

  • and for negligence, a tort cause of action.

  • And you might be found liable

  • for neither, both, or either basis.

  • So, a tort is a wrongful act,

  • other than a breach of contract,

  • that results in injury to another party's person,

  • property, dignity, or reputation,

  • and which is recognized by statute or common law

  • as a legitimate basis for liability.

>> "What is Torts?

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第1.1話「不法行為とは?不法行為とは何か?そして不法行為とは何か (Episode 1.1: What is Torts? And what Torts is not.)

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    Amy.Lin に公開 2021 年 01 月 14 日
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