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Causation Causation is the "causal relationship between conduct and result. 1. Cause in fact - But for test 2. Proximate cause – Forseeability test Intervening.

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Presentation on theme: "Causation Causation is the "causal relationship between conduct and result. 1. Cause in fact - But for test 2. Proximate cause – Forseeability test Intervening."— Presentation transcript:

1 Causation Causation is the "causal relationship between conduct and result. 1. Cause in fact - But for test 2. Proximate cause – Forseeability test Intervening Cause

2 Compensation of damage 1. Compensatory damages - Damages for personal injury and property damage 2. Damages for psychiatric injury 2. Punitive damages

3 Compensatory damages 1. Damages for personal injury,including: (I) Medical costs; (ii) loss of earnings; (iii) Other costs; 2. Damages for property damage - the direct loss of the damaged property

4 中国 – 补偿性损害赔偿 造成人身损害的,侵权人应当赔偿医疗费,护理费和交通 费等为治疗和康复指出的合理费用,以及因误工减少的收 入,造成残疾的, 还应当赔偿残疾生活资助具费和残疾赔 偿金。造成死亡的,还应当赔偿丧葬费和死亡赔偿金。 因 同一侵权行为造成多人死亡的,可以以相同数额确定死亡 赔偿金。 造成财产损失的,按照被侵权人受到的损失赔偿,被侵权 人的损失难以确定,侵权人因此获得利益的,按照其获得 的利益赔偿,侵权人因此获得的利益难以确定的,被侵权 人和侵权人就赔偿数额协商不一致的,向人民法院提起诉 讼的,由人民法院根据实际情况确定赔偿数额。

5 Damages for psychiatric injury 1. Who is eligible to claim Damages for psychiatric injury? 2. How to calculate the amount? 1. Who is eligible to claim Damages for psychiatric injury? - person who suffered psychiatric injury caused by the recognized psychiatric injury Kroger Co. v. Beck The Plaintiff bought a packed steak from the defendant. When she had the steak with her family for dinner, she felt great pain of her throat. She went to the bathroom and threw up. She found a needlepoint from the steak she threw up. She was shocked and threw away all the steak left. From then on, she never eat meat again, although the meat was always served as main dish in her family.

6 精神损害赔偿 - 中国 精神损害的赔偿数额根据以下因素确定: (一)侵权人的过错程度,法律另有规定的除外; (二)侵害的手段、场合、行为方式等具体情节; (三)侵权行为所造成的后果; (四)侵权人的获利情况; (五)侵权人承担责任的经济能力; (六)受诉法院所在地平均生活水平。

7 精神损害赔偿 - 中国 1 、因侵权行为致人死亡的,精神损害抚慰金为死亡赔偿金。死亡赔偿金应按 照受诉法院所在地平均生活费计算二十年;对七十周岁以上的受害人,年龄 每增力口一岁少计一年,但补偿年限最低不少于十年。 受诉法院所在地,是指受理案件的基层人民法院所在的县(区、市), 平均生活费标准,应以政府有关部门统计公布的上一年度城镇居民早均生活 水平为准,不应区分城市和农村。 2 、因侵权行为致人残疾的,精神损害抚慰金为残疾赔偿金。 残疾赔偿金的上限为 100000 元。其具体赔偿救额的计算公式为:残疾赔 偿金= 100000 元 × 伤残等级系数 × 责任系数。计算残疾赔偿金不应考虑年限。 伤残等级系数, 1 级伤残为 1 ; 2 级伤残为 0.9 ;依此类推, 10 级伤残为 0.1 。 责任系数按照当事人过错责任的大小确定。如责任人承担全部责任的, 责任系数为 1 ;承担一半责任的,责任系数为 0.5 。 侵权行为手段、情节、方式特别恶劣的,残疾赔偿金的数额可适当高于 通过上述公式计算出的数额。

8 Punitive damage 中国 : 《侵权责任法》 - 明知产品存在缺陷仍然生产,销售,造成他人死亡或 者健康严重损害的,被侵权人有权依法请求相应的惩 罚性赔偿。

9 Punitive damage Liebeck v. McDonald's Restaurants 79 岁的老太太 Stella Liebeck 在麦当劳买了以备热咖啡, 打开被盖死昂要引用时不深自己手一抖吧一下咖啡泼到 了腿上,杯中的热咖啡导致了三级烫伤,为此,陪审团 裁决给这位老太太 160,000 美元的补偿性赔偿与另外的 2,700,000 美元的惩罚性赔偿 Grimshaw v. Ford Motor Co. 福特公司曾在上世纪 70 年代退出了一种名为 Pinto 的经济 行车,然而这款车有一个致命的设计缺陷,即当该车发 生低速最为时极易造成邮箱破裂爆炸,因此被人戏称为 “ 四人座烤肉车 ” ,一次 Pinto 车照例造成的一死一伤的事 故中,陪审团裁决给了伤者 2,516,000 美元的补偿性赔偿 并且 125,000,000 美元的惩罚性赔偿。

10 Defenses US- defenses when applying different doctrine of liability 1. Doctrine of negligence – Defense – the defendant has fully performed the duty of care. 2. Doctrine of warranty Defense – the limitation or exclusion of the warranty 3 Doctrine of strict liability Defense - Assumption of the risk The plaintiff knew the defect of the product The plaintiff voluntarily took the risk The plaintiff suffered detriment

11 4. State of Art - the defect of product could not be discovered according to the state of scientific and technical knowledge at the time when it was put into circulation 5. Product misuse and Alternation - the manufacturers have the duty to take measures to avoid the risk in reasonably foreseeable misuse and alternation. 6. Inherent product danger

12 Comparative negligence - a partial legal defense that reduces the amount of damages that a plaintiff can recover in a negligence-based claim based upon the degree to which the plaintiff's own negligence contributed to cause the injury. "Pure" comparative negligence - Looks to the degree of fault of each party in determining what amount the award will be. “Modified" comparative negligence. - Looks to the degree of fault of each party in determining whether an award is justified and what amount the award will be. - allows plaintiffs to recover only if the plaintiff's negligence is "not greater than" the defendant's

13 China – Product Liability Law According to the Article 41 of the Product Quality Law, the producer could exempt himself from liability if he can prove the existence of any of the following circumstances” ① The product has not been put in circulation ② The defect causing the damage did not exist at the time when the product was put in circulation ③ The science and technology at the time the product was put in circulation was at a level incapable of defecting the defect

14 Limitation period The limitation period fro bring an action of product liability is two years, counting from the day when plaintiff knew or should have known the infringement of his rights and interests. The right to claim for damages arising from defective products shall be forfeited upon completion of ten years from the day when the defective product causing the damage is delivered to the first user or consumer, except that the clearly stated safe-use period has not expires.

15 EU – Directive 1985 1. threat he did not put the product into circulation; or 2. that, having regard to the circumstances, it is probable that the defect which caused the damage did not exist at the time when the product was put into circulation by him or that this defect came into being afterwards; or 3. that the defect is due to compliance of the product with mandatory regulations issued by the public authorities or 4. that the state the state of scientific and technical knowledge at the time when he put the defect is attributable to the design of the product in which the component has been fitted or to the instructions given by the manufacturer of the product.

16 Limitation period In Directive 1985, a limitation period of three years shall apply to proceedings for the recovery of damage. the limitation period shall begin to run from the day on which the plaintiff became aware, or should reasonably have become aware,of the damage, The injured person shall be extinguished upon the expiry of a period of 10 years from the date on which the producer put into circulation the actual product which caused the damage, unless the injured person has in the meantime instituted proceedings against the producer.

17 Jurisdiction US - Long-arm statute - 长臂管辖权 The court has the jurisdiction over the product liability case when the defendant: a) run business in the state b) sign the contract and provide goods in the state c) commit any act or omission in the state which cause detriment d) engage commercial activity or gain profit within the state

18 When an American consumer sue Chinese producer for product liability Whether the American court has the jurisdiction. - Long-arm statute Whether the property of the Chinese producer or seller could be executed by an American court. When the Chinese producer or seller: 1. has property to be executed in US 2. has property to be executed in another country which recognized decision by American court 3. has property in China only

19 China - Jurisdiction The court of the Residency of the defendant The court of the place where the tort action takes place

20

21 what is agency Agency is a fiduciary relationship created by express or implied contract or by law, in which one party (the agent) may act on behalf of another party (the principal) and bind that other party by words or actions.

22 Parties in agency Agent: person authorized by another to act for or in place of him or her. 代理人 Principal: person who, by agreement or otherwise, authorizes an agent to act on his or her behalf in such a way that the acts of the agent become binding on the principle. 本人 Third party: any person doing business with agent. 第三人

23 Law of agency Internal relationship - relationship between the agent and the principal External relationship - relationship between the agent, principal and the third party

24 Creation of agency 1. Express authority – 明示授权的代理 2. Implied authority 当事人行为产生的代理 3. Agency by ratification – 追认代理 4. Agency of necessity - 客观必需的代理

25 Express authority Created by the express authorization of principal Most commonly used Writing/oral

26 Implied authority 1. A asked B to order from C on the first day of every month and pays the price to C every time. After round one year, on 1 March, B ordered from C, but A refused to pay by saying that he didn ’ t authorize B to order this time. 2. After having lunch in the restaurant, A paid the bill to the waiter. The restaurant asked A to pay again by saying that waiters in the restaurant are not allowed to take the money from the customers directly. 3. A buys meat and other food items at the local store. One time A forgot to pay and the store owner asked A ’ s husband B to pay the money. But B refused by saying that it was A ’ s obligation to pay.

27 Implied authority 1. Words or conducts 2. Custom and usage 3. Certain Relationship : Ie: husband and wide, partners in the partnership.

28 Agency by ratification Unauthorized act: An agent exceeds the limited authority granted A nonagent acts as agent for another. Ratification is the principal’s adoption of the agent’s previously unauthorized act Legal effect of ratification Not binding for principal without ratification If the principal accepts the results of the agent’s act, then the principal is bound, just as if he or she had authorized the individual to act as agency.

29 Agency by ratification An unauthorized person ordered five doors from Parker, a carpenter, to be delivered together with the invoices to Zakin. The doors, though not ordered by him, were accepted and used by Zakin. Parker demanded payment and was told that the price was too high. Parker sued for the payment of full price according to his invoice.

30 Agency by ratification Unauthorized act: An agent exceeds the limited authority granted A nonagent acts as agent for another. Ratification is the principal’s adoption of the agent’s previously unauthorized act Legal effect of ratification Not binding for principal without ratification If the principal accepts the results of the agent’s act, then the principal is bound, just as if he or she had authorized the individual to act as agency.

31 effect of ratification An unauthorized agent signed a contract on July 1 and the principal ratified the contract on July 15. When was this contract regarded to be signed? - July 1.

32 Apparent Authority Definition: Although the agent is not authorized, the principal causes the third parties to reasonably believe the agent has authority. - China: 表见代理 - US: Agency by estoppel A clothes factory decided to promote its fashion clothes. Marry was one of the worker in the factory. She had a friend, Peter, working in a department store, so she asked Peter to order clothes. Peter was not authorized to purchase by manager. But he had sealed blank contract. He ordered clothes of ¥10,000 with Marry. When the clothes factory delivered goods to the department store and asked payment. The store refused by saying Peter was not authorized to purchase.

33 Apparent Authority Elements: 1. A nonagent acts as agent for another. 2. The third party reasonably believes the nonagent has the authority from the principal 3. The principal negligently causes third party to reasonably believe the nonagent has the authority Legal effects of apparent authority Principal to third party: Principal is liable. (same as authorized agency) Principal has right to sue the unauthorized agent for compensation

34 陆某是本市一套房屋的产权人。 5 月,陆某儿子拿着他的印章、身份证和房屋产权证原件 委托一家房产中介公司出售房屋。中介公司及时找到了下 家徐某。 6 月,陆某儿子拿陆某印章和徐某签了房屋买卖合同,并到 房地产交易中心办理了房屋过户手续。 8 月,徐某要求入住房屋时,遭到陆某的拒绝。 陆某认为,自己的印章、身份证和房屋产权证是被儿子偷 出去的,儿子的所作所为他并不知情。双方在交涉无果的 情况下,陆某于 8 月 15 日起诉到法院,要求法院宣告房屋买 卖合同无效。

35 Nondelegable duties 1. The act required by law to be performed personally by the principal cannot be delegated to an agent. 2. The act required of the principal is personal in nature, he can not delegate to an agent.

36 Internal Relationships Duties of agent to principal Fiduciary duty of Loyalty Duty of obedience Duty of care Duty of accounting Duty of communication Duties of Principal to Agent Duty to pay commission Duty to reimburse and indemnify Duty to keep accounts

37 1. Fiduciary duty of Loyalty The agent owes a fiduciary duty of good faith( 诚信 ) and utmost loyalty( 忠实 ) to the principal. 1. Conflicts of interest 2. Self-dealing prohibition 3. Confidentiality

38 Conflicts of interest A retained B to act as a broker in the sale of his house. Borden obtained a corporation to buy the house. When A found that B was an officer of that corporation, did he have the right to avoid the contract of sale? YES - Persons cannot act as agents for parties with adverse interests

39 Self-dealing prohibition Company A authorized company B to purchase a machine in 2000. Company B ordered machine from itself and sold to A. - The agent’s own personal financial interests cannot directly conflict with the principal’s financial interest

40 Confidentiality The agent should keep the information provided by the principal confidential. Such as: trade secrets, business plans, financial plans, customer lists, sales tactics, Manufacturing technologies, New product information

41 2. Duty of obedience Agents must generally obey any reasonable directions the principal provides that will impact the principal ’ s business, and is liable for any loss if he deviates. Exception? Instructions are illegal, immoral or against public policy In the event of a sudden emergency

42 3. Duty of care Agent must use reasonable skill and care in conducting the principal ’ s business. - No requirement of success by law - The agent should fulfill the duty of care even without payment

43 4. Duty of accounting All property and funds belonging to the principal are required to be accounted for adequately. The agent’s individual property must be kept separate from the principal’s property. 5. Duty of communication Agents must communicate to the principal all relevant information and notices they receive in the course of performing the principal’s business.

44 Duty of the Principal 1. Duty to Pay Commission - the amount and time to pay is decided by: a) Agreement b) No agreement, custom Contingent compensation ( 权变报酬 ) - The compensation is made contingently on results. Sales agents: paid an agreed-on percentage of the value of the sales they made Lawyers (in tort actions): contingent fees, if they win the case for the plaintiff, they got some share (often 1/3) of the recovery; if they fail, no compensation.

45 Case: commission Peter was a broker working in a real estate broke corporation. He produced a buyer who was “ ready, willing and able ” to buy. The buyer didn ’ t sign the contract because he wanted to tell his wife before sign the contract. The next day, Peter quit the corporation. Two days later, the buyer come and signed the contract with the principal.

46 Duty to pay commission If the principal negotiates and concludes the contract with the third party directly, shall he pay commission? 1. Agreement of agency 2. No statement in agreement a) Agent ’ s contribution: paid b) No agent ’ s contribution: not paid Exception: sole agent for an area: paid

47 Duty to pay commission For the subsequent contracts? 1. Within the duration of agency: yes 2. Agency contract expires: no Exception: - When an agent was the primary factor in a purchase or sale, he may be entitled to compensation regardless of who eventually completes the sale.

48 2. Duty to Reimburse and Indemnify 1. If the agent is acting within the scope of authority - The principal has a duty to reimburse the agent for expenses; to indemnify the agent for losses 2. If expenses or losses are caused by the agent fault - The principal will not be required to reimburse or indemnify

49 3. Duty to keep accounts The principal has a duty to keep records by which the commission due the agent can be determined.


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