The Draft Common Frame of Reference as a "Toolbox" for Domestic Courts
A Solution to the Pure Economic Loss Problem from a Comparative Perspective
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Beschreibung
This book investigates whether national courts could and should import innovative solutions from abroad in the adjudication of complex legal disputes. Special attention is paid to the concept of “legally relevant damage” and its importance in overcoming the deadlock created by the category of “pure economic loss” in the Portuguese and German tort law systems. These systems are essentially based on the concept of unlawfulness (“Rechtswidrigkeit”), which limits the compensation for pure economic loss to where a protective rule is infringed. These losses have nevertheless been compensated for through the extensive interpretation of rules and the appeal to near-contractual devices, which has been detrimental to legal certainty, the equality before the law, and subjects’ freedom of action. This book explains why courts can and should take a proactive role and apply DCFR-based solutions in order to compensate for every loss that is worthy of legal protection.
This book investigates whether national courts could and should import innovative solutions from abroad in the adjudication of complex legal disputes. Special attention is paid to the concept of “legally relevant damage” and its importance in overcoming the deadlock created by the category of “pure economic loss” in the Portuguese and German tort law systems. These systems are essentially based on the concept of unlawfulness (“Rechtswidrigkeit”), which limits the compensation for pure economic loss to where a protective rule is infringed. These losses have nevertheless been compensated for through the extensive interpretation of rules and the appeal to near-contractual devices, which has been detrimental to legal certainty, the equality before the law, and subjects’ freedom of action. This book explains why courts can and should take a proactive role and apply DCFR-based solutions in order to compensate for every loss that is worthy of legal protection.
Presents an unbiased description of the evolution of the DCFR Defends the harmonisation of European Private Law using techniques already available in the legal system Includes a thorough description of the evolution of Portuguese codification and of the Portuguese tort law system Presents a detailed comparison of the Portuguese and German tort law systems Compares the requirements of liability, particularly unlawfulness and the concept of legally relevant damage Seeks to apply the DCFR concept to the development of the Portuguese tort law system Puts forward a structured proposal to remedy the standstill created by the pure economic loss approach in Portugal Includes supplementary material: sn.pub/extras
Autor*in
Marta Santos Silva
Themen in »The Draft Common Frame of Reference as a "Toolbox" for Domestic Courts«
Draft Common Frame of Reference Legally relevant damage Pure economic loss Unlawfulness Civil Code Non-contractual liability Liability Legal interpretation DFCR Tort law Portugal European private law