The summa divisio between the person and the thing lies, traditionally, at the very basis of European private law. In a growing number of European jurisdictions however, provisions have been introduced in the Civil Code that differentiate between animals and other legal things or objects. Even though it is certain that these provisions do not vest animals with a form of legal personality similar to that of humans or corporations, it has been noted that the new legal status may influence the way animals are being addressed in other areas of private law and can sometimes even be construed as limiting the rights of persons. Perceived as such, the special status of the animal challenges the traditional dichotomy between the person and the thing, giving rise to a category that lies in between.
{"title":"Neither Persons nor Things: The Changing Status of Animals in Private Law","authors":"Eva Bernet Kempers","doi":"10.54648/erpl2021003","DOIUrl":"https://doi.org/10.54648/erpl2021003","url":null,"abstract":"The summa divisio between the person and the thing lies, traditionally, at the very basis of European private law. In a growing number of European jurisdictions however, provisions have been introduced in the Civil Code that differentiate between animals and other legal things or objects. Even though it is certain that these provisions do not vest animals with a form of legal personality similar to that of humans or corporations, it has been noted that the new legal status may influence the way animals are being addressed in other areas of private law and can sometimes even be construed as limiting the rights of persons. Perceived as such, the special status of the animal challenges the traditional dichotomy between the person and the thing, giving rise to a category that lies in between.","PeriodicalId":43736,"journal":{"name":"European Review of Private Law","volume":" ","pages":""},"PeriodicalIF":0.3,"publicationDate":"2021-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43283292","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Book Review: I. V. Aronstein, Remedies for Infringements of EU Law in Legal Relationships Between Private Parties","authors":"G. Howells","doi":"10.54648/erpl2021007","DOIUrl":"https://doi.org/10.54648/erpl2021007","url":null,"abstract":"","PeriodicalId":43736,"journal":{"name":"European Review of Private Law","volume":" ","pages":""},"PeriodicalIF":0.3,"publicationDate":"2021-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45955354","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Der digitale Acquis Communautaire und die Frage nach dem Danach","authors":"A. Janssen","doi":"10.54648/erpl2021001","DOIUrl":"https://doi.org/10.54648/erpl2021001","url":null,"abstract":"","PeriodicalId":43736,"journal":{"name":"European Review of Private Law","volume":" ","pages":""},"PeriodicalIF":0.3,"publicationDate":"2021-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49382881","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Conference Report: Digital Consumer Contract Law and New Technologies","authors":"Philipp Etzkorn","doi":"10.54648/erpl2021008","DOIUrl":"https://doi.org/10.54648/erpl2021008","url":null,"abstract":"","PeriodicalId":43736,"journal":{"name":"European Review of Private Law","volume":" ","pages":""},"PeriodicalIF":0.3,"publicationDate":"2021-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46505762","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Marta dos Santos Silva, D. Fairgrieve, Eleonora Rajneri, A. Keirse, P. Machnikowski, Jean-Sébastien Borghetti, P. García, Christoph Schmon, Vibe Ulbeck, Vera Vallone, Herbert Zech
Under Council Directive 85/374/EEC, liability of a producer crucially depends upon the proof of a product’s defectiveness. This central notion of the Directive has however long been the source of debate regarding the extent to which it is grounded in a solely safetybased approach, or whether a risk-benefit approach may be admitted. The defectiveness concept is now subject to a growing body of case law. This article examines how the courts in a selection of Member States (MS) approach the notion of defect and take account of riskbenefit considerations in determining whether a product is defective. It aims, first, at lowering the level of complexity which was added to the definition of defect in theDirective by the discretion given to national courts on the applicable standard of liability. Second, it means to show the real level and scope of harmonization of the product liability law in the EU by revealing differences that still exist in the interpretation of seemingly harmonized laws. Third, it aims to contribute to the clarification of whether the risk-benefit test is compliant with the spirit of the Directive, and thereby informing policy makers at a time where the guidelines of interpretation of the Directive are being prepared.
{"title":"Relevance of Risk-benefit for Assessing Defectiveness of a Product: A Comparative Study of Thirteen European Legal Systems","authors":"Marta dos Santos Silva, D. Fairgrieve, Eleonora Rajneri, A. Keirse, P. Machnikowski, Jean-Sébastien Borghetti, P. García, Christoph Schmon, Vibe Ulbeck, Vera Vallone, Herbert Zech","doi":"10.54648/erpl2021005","DOIUrl":"https://doi.org/10.54648/erpl2021005","url":null,"abstract":"Under Council Directive 85/374/EEC, liability of a producer crucially depends upon the proof of a product’s defectiveness. This central notion of the Directive has however long been the source of debate regarding the extent to which it is grounded in a solely safetybased approach, or whether a risk-benefit approach may be admitted. The defectiveness concept is now subject to a growing body of case law. This article examines how the courts in a selection of Member States (MS) approach the notion of defect and take account of riskbenefit considerations in determining whether a product is defective. It aims, first, at lowering the level of complexity which was added to the definition of defect in theDirective by the discretion given to national courts on the applicable standard of liability. Second, it means to show the real level and scope of harmonization of the product liability law in the EU by revealing differences that still exist in the interpretation of seemingly harmonized laws. Third, it aims to contribute to the clarification of whether the risk-benefit test is compliant with the spirit of the Directive, and thereby informing policy makers at a time where the guidelines of interpretation of the Directive are being prepared.","PeriodicalId":43736,"journal":{"name":"European Review of Private Law","volume":" ","pages":""},"PeriodicalIF":0.3,"publicationDate":"2021-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47261804","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Book Review: Sarah Brown, The Regulation of Consumer Credit","authors":"G. Howells","doi":"10.54648/erpl2021006","DOIUrl":"https://doi.org/10.54648/erpl2021006","url":null,"abstract":"","PeriodicalId":43736,"journal":{"name":"European Review of Private Law","volume":" ","pages":""},"PeriodicalIF":0.3,"publicationDate":"2021-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44077145","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In many jurisdictions, courts and the related tort liability rules have failed to adequately address conflicts arising from healthcare delivery that has caused harm. The litigation model – the classic model used to deal with medical liability – must be, if not replaced, at least supplemented by another model, and alternative dispute resolution is best suited to this task. Because conflicts are resolved in a less adversarial environment than a courtroom and led by people with knowledge of both medicine and law, alternative dispute resolution promotes a congenial procedure, is faster and cheaper than traditional litigation and can provide more satisfactory outcomes for all parties. This paper reviews some of the failures of litigation as a means of resolving disputes related to medical liability and considers how alternative dispute resolution methods can address these failures, providing some examples from civil law jurisdictions in Europe. alternative dispute resolution, doctor-patient relationship, litigation, medical liability Motsclés: résolution alternative des conflits, relation médecin-patient, contentieux, responsabilité médicale Schlüsselwörter: alternative Streitbeilegung, Arzt-Patient-Beziehung, Gerichtsverfahren, Arzthaftung
在许多司法管辖区，法院和相关的侵权责任规则未能充分解决因医疗服务提供而产生的造成伤害的冲突。诉讼模式——用于处理医疗责任的经典模式——如果不能被取代，至少必须被另一种模式所补充，而替代性纠纷解决最适合这项任务。由于冲突是在一个比法庭更不具对抗性的环境中解决的，并且由精通医学和法律的人领导，因此替代性纠纷解决可以促进一种和谐的程序，比传统诉讼更快、更便宜，并且可以为各方提供更令人满意的结果。本文回顾了诉讼作为解决医疗责任纠纷手段的一些失败，并考虑了替代性纠纷解决方法如何解决这些失败，提供了欧洲民法管辖区的一些例子，医疗责任Motsclés:résolution alternative des conflicits，relation médecin patient，contentieux，responsabilitémémedical Schlüsselwörter:alternative Streitbeilegung，Arzt patient Beziehung，Gerichtsverfahren，Arzthaftung
{"title":"I (Won’t) See You in Court Alternative Dispute Resolution for Medical Liability Conflicts: Examples from Europe","authors":"Vera Lúcia Raposo","doi":"10.54648/erpl2020076","DOIUrl":"https://doi.org/10.54648/erpl2020076","url":null,"abstract":"In many jurisdictions, courts and the related tort liability rules have failed to adequately address conflicts arising from healthcare delivery that has caused harm. The litigation model – the classic model used to deal with medical liability – must be, if not replaced, at least supplemented by another model, and alternative dispute resolution is best suited to this task. Because conflicts are resolved in a less adversarial environment than a courtroom and led by people with knowledge of both medicine and law, alternative dispute resolution promotes a congenial procedure, is faster and cheaper than traditional litigation and can provide more satisfactory outcomes for all parties. This paper reviews some of the failures of litigation as a means of resolving disputes related to medical liability and considers how alternative dispute resolution methods can address these failures, providing some examples from civil law jurisdictions in Europe.\u0000alternative dispute resolution, doctor-patient relationship, litigation, medical liability Motsclés: résolution alternative des conflits, relation médecin-patient, contentieux, responsabilité médicale Schlüsselwörter: alternative Streitbeilegung, Arzt-Patient-Beziehung, Gerichtsverfahren, Arzthaftung","PeriodicalId":43736,"journal":{"name":"European Review of Private Law","volume":" ","pages":""},"PeriodicalIF":0.3,"publicationDate":"2020-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45487386","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The second Ole Lando Memorial Lecture is about the influence of theconstitutional protection of human dignity on private contract law. The paper argues that where violations of human dignity occur, it is no longer possible to distinguish between the vertical and horizontal effects of fundamental and human rights. The article demonstrates this using the example of contracts that violate dignity, in particular within the law on assisted dying. Human dignity, Contracts violating human dignity, Assisted dying Motsclés: Dignité humaine, Contrats portant atteinte à la dignité, Mort assistée Schlüsselwörter: Menschenwürde, Würdeverletzende Verträge, Sterbehilfe
{"title":"Ole Lando Memorial Lecture: Contract Law and Human Dignity. Second Ole Lando Memorial Lecture, Vienna 2020","authors":"Christian von Bar","doi":"10.54648/erpl2020072","DOIUrl":"https://doi.org/10.54648/erpl2020072","url":null,"abstract":"The second Ole Lando Memorial Lecture is about the influence of theconstitutional protection of human dignity on private contract law. The paper argues that where violations of human dignity occur, it is no longer possible to distinguish between the vertical and horizontal effects of fundamental and human rights. The article demonstrates this using the example of contracts that violate dignity, in particular within the law on assisted dying.\u0000Human dignity, Contracts violating human dignity, Assisted dying Motsclés: Dignité humaine, Contrats portant atteinte à la dignité, Mort assistée Schlüsselwörter: Menschenwürde, Würdeverletzende Verträge, Sterbehilfe","PeriodicalId":43736,"journal":{"name":"European Review of Private Law","volume":"1 1","pages":""},"PeriodicalIF":0.3,"publicationDate":"2020-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70981002","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Within the European Union, the Rome II Regulation determines the applicable law on cross-border matters of non-contractual nature. The paper examines the applicable law on environmental-related tort claims against European multi-national companies utilizing production facilities in third countries, either based on active misconduct or on alleged omission of environment-related due diligence. As these types of claims are an expression of misconduct by multinational corporations conducting business abroad, particular notice will be given to the applicable law on compensation claims for environmental damages allegedly caused by negligent compliance for environmental standards of either independent or subsidiary production facilities. While doing so, its main point of interest will be whether claims against European-based companies may be governed by the law of the effective seat of the latter. Considering that Article 7 Rome II provides for a special connecting factor regarding environmental damages, the paper examines whether Rome II does justice for due diligence-related cases on the conflict of laws level and argues for a nuanced approach to localize the place of the event giving rise to such damages. Private International Law, Environmental Damages, Civil Compensation, Torts, Corporate Social Responsibility, Rome II, Mandatory Rules, Public policy
{"title":"Due Diligence and Environmental Damages Under Rome II","authors":"Ole Aldag","doi":"10.54648/erpl2020074","DOIUrl":"https://doi.org/10.54648/erpl2020074","url":null,"abstract":"Within the European Union, the Rome II Regulation determines the applicable law on cross-border matters of non-contractual nature. The paper examines the applicable law on environmental-related tort claims against European multi-national companies utilizing production facilities in third countries, either based on active misconduct or on alleged omission of environment-related due diligence. As these types of claims are an expression of misconduct by multinational corporations conducting business abroad, particular notice will be given to the applicable law on compensation claims for environmental damages allegedly caused by negligent compliance for environmental standards of either independent or subsidiary production facilities. While doing so, its main point of interest will be whether claims against European-based companies may be governed by the law of the effective seat of the latter. Considering that Article 7 Rome II provides for a special connecting factor regarding environmental damages, the paper examines whether Rome II does justice for due diligence-related cases on the conflict of laws level and argues for a nuanced approach to localize the place of the event giving rise to such damages.\u0000Private International Law, Environmental Damages, Civil Compensation, Torts, Corporate Social Responsibility, Rome II, Mandatory Rules, Public policy","PeriodicalId":43736,"journal":{"name":"European Review of Private Law","volume":" ","pages":""},"PeriodicalIF":0.3,"publicationDate":"2020-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41646707","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Book Review: Contract Law in Contemporary International Commerce by Gianluigi Passarelli","authors":"Fieke van Overbeeke","doi":"10.54648/erpl2020077","DOIUrl":"https://doi.org/10.54648/erpl2020077","url":null,"abstract":"","PeriodicalId":43736,"journal":{"name":"European Review of Private Law","volume":" ","pages":""},"PeriodicalIF":0.3,"publicationDate":"2020-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47661255","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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