Understanding Joint Liability in Tort Law: Directive's Article 5 & 8, Apuntes de Derecho

¡Descarga Understanding Joint Liability in Tort Law: Directive's Article 5 & 8 y más Apuntes en PDF de Derecho solo en Docsity! TORT LAW 12.2 Today we cover question regarding article 5 and 8 of the directive. They are not easy to solve. The traditional and normal form of liability involves one agent causing harm to one or more then one victim. Usually when the problem arises from plurality of victims the problem tends to be a procedural one solved differently in different legal systems. From material point of view- when several agents cause the same harm to one or several victims. This class we will deal with plurality of agents. How the problem of several liable agents is solved in the directive and in the national tort law systems and how the rules that the d dedicates to this question work? The model that we have to keep in mind is model that is quite usual, situation in which more then one person/agent is liable for the harms suffering of victim. Article 5 says: general principle of joint and several liability-when two or more persons are liable for the damage. Article 8 contains two rules that are in the same article because they involve the presence of two or more persons...the intervention of 3rd party different from those...does not prevent that .. The second paragraph announces that according to the national laws the intervention of the victim itself will reduce the amount of liability of producer. The combination of this articles means that we have to deal with three different situations. One possibility is possibility in article 5. So is producer, importer, supplier.(.article 3) So this two or more persons is clearly referring to the situations when more then one producer or importer or the combination of them are liable for the same damage. Products contain parts produced by different producers or imported to eu from outside. The more complex the product is the more is there the possibility that has parts from diff producers,. In this case the liability is JOINT and SEVERAL. This is the first scenario. The second possibility is covered by article 8.1 This article is taking into account situation in which one producer (or importer or supplier) plus 3rd party cause the harm. Both elements are necessary. Defect plus act or omission of someone diff from those liable in article 3 and diff from the victim. Product is defective but this defect has cost harm because a 3rd party has done or has not done something and the final damage can be explained only by the combination by this two issues. Third situation covered by article 8.2. Here the liable person acc the article 3 has made a defective product but the victim itself made something wrong and his omission or act is necessary intervention. These are the three possible situations when more then one person can be liable. Usually the 3rd situation is explained as something different from others because here the victim is in the picture. The real problem has to do with the question of the distribution of liability. Here someone is losing the right to obtain the money (in 3rd). Joint and several liability solution According the traditionaloint of view the liability of more then one person can be several, joint or joint and several. According to several regimes liability is distributed among as many parts as liable parts are in shares that tend to be equal. If there are two- then 50/50. ones the agent has paid his shares this part is discharged to this part of liability. Responsabilidad por partes. Second possibility is to deal this group as joint liability. All of them have to pay the final amount at the same time. Es mancomunada. To ask to all the liable agents the compensation and all of them have to pay. The typical example when several persons are obliged to do something. F ex the musical group… The 3rd solution es solidaridad. This is the most complex solution. There is an external or outside relationship between the victim and liable agents and in this relationship the victim can ask entire compensation from anybody from the producers. When one of the agent has paid then there is internal relationship between agents. They should distribute their liability according agreements if there are or to real contribution to the final damage. In Spain is not clear which of this three regime should apply. In some eu civil codes sp, fr), the 3rd rule design for contractual obligations. It can be just reached by agreement. Is stronger for debtor and only by agreement only can decide to be responsible in this way. Nowadays the drafters of the civil codes didn’t say anything about this! No specific legal regime when we have more then one liable person in non contractual. It was solved by cases. In fact the courts have built specific joint several regime for tort law regimes. Obigatio in solutio. Solidaridad impefecta. The 3rd liability has been extended in these countries to tort law cases because this liability is for sure the solution that protects the best the victim because the victim doesn’t have to prove the specific shares of liability. Only that same damage has been formed by them. Due to these two steps of liability the victim can ask for entire compensation for one agent in principal the most solvent one. Then this agent has to claim to others. Acción de regreso. It means if one of the agents is insolvent, these share will not be assumed by the victim. It will be assumed from others liable persons. For this reason even in legal systems in Spain in which code does not provide this solution for tort law cases case law is using it. Some eu legal systems in Germany, this liability is adopted as general solution. Article 5- is assuming btw the potential solutions the solution that clearly protects the victim, and is solving the problem that comes from the diversity of legal regimes regarding the liability of several persons among eu tort law systems. Drafters knew that this is the question on which legal regime….national laws were different,,,because of that they unify this question. (This is the first situation) The second situation 8.1...the producer concurs in the same history of the accident with 3rd party other then a victim. This is an article that at first sight ight seen strange. It needs to be correctly understood. Is saying that in situation in which one producer has produced something defective and 3rd party has done or not has done something ..the presence of this 3rd party is not reducing from claiming the liability from the producer. Producer will be fully liable in from of the victim even if 3rd person has some kind of wrong intervention of the causation of the damage. It could be seen as not necessary to establish this rule if article 5 said instead of liable persons according to article 3, one then more person is liable…but it says that liable persons are art 3. Why eu drafters felt the necessity of establishing this rule? It has to do with two issues. The first one has to do with the cost of the process or with the idea of reducing the cost of the claim of the victim. This explains why the directive is so concerned on the identification of the producer or importer or supplier. These idea is easy to reach when we got the producer but ..By including this rule wanted to reduce the cost of victim. Victim can claim against producer! It makes making the claim easier for compensation. The second issue- incentives for control. As you can image this liability has direct effect on how market works and what this article is seeking is to put on the side of the producer the real incentives the potential 3rd parties that could do something dangerous to harm the producer, the producer can train the suppliers or dealers, or the person he transports