Questions & explanations
1. Compare the elements of tortious interference with contract and tortious interference with prospective economic advantage.
Both torts protect economic interests from intentional disruption, but they differ in the type of relationship. Tortious interference with contract requires a valid, existing contract that the defendant knows about and intentionally causes a breach. For example, inducing a party to break a signed agreement. Tortious interference with prospective economic advantage does not require an existing contract; it protects a future business relationship that is reasonably likely to occur. For example, interfering with a negotiation that would likely lead to a contract. The latter also requires that the defendant used wrongful means, while the former may not require wrongful means if the interference is intentional. Both require proof of damages, but the prospective advantage claim is harder to prove because the relationship is less certain.
2. How does unfair competition differ from tortious interference?
Unfair competition is a broader area of law that includes various wrongful business practices that harm competitors, such as false advertising, trademark infringement, or stealing trade secrets. Tortious interference is a specific type of unfair competition that focuses on disrupting contracts or business relationships. For example, if a company lies about its competitor's product to steal customers, that is unfair competition (false advertising). But if the company persuades a competitor's employee to break a non-compete agreement, that is tortious interference. Unfair competition often involves deception or misappropriation, while tortious interference involves intentional disruption of existing or prospective contracts. Both protect economic interests but cover different wrongful acts.
3. How does market share liability differ from traditional joint and several liability?
In traditional joint and several liability, each defendant can be held liable for the entire amount of damages if they acted together or caused a single indivisible harm. The plaintiff can collect the full amount from any one defendant, who then seeks contribution from others. In market share liability, each defendant is only liable for its share of the damages based on its market share, not the whole amount. For example, if three companies each have a 1/3 market share, each pays 1/3 of the damages. The plaintiff cannot collect the full amount from one company. This is fairer when the plaintiff cannot prove which specific company caused the harm, as it avoids overburdening any single defendant. Market share liability is a special rule for cases where identification is impossible.
4. In common law systems, what source of law primarily governs torts?
In common law systems, torts are primarily governed by judge-made law from court decisions, known as case law or precedent. Judges decide cases based on previous rulings, and these decisions become binding for future similar cases. This system relies on the principle of stare decisis, meaning 'to stand by things decided.' In contrast, civil law systems rely on comprehensive written codes, like the French Civil Code or the German Bürgerliches Gesetzbuch, which contain general rules that judges apply to specific cases. Mixed jurisdictions, such as South Africa or Scotland, combine elements of both: they use case law from common law but also have codified statutes from civil law. Understanding these sources helps predict how a tort claim might be handled in different legal systems.
5. Compare the approach to strict liability in common law versus civil law systems.
Common law systems typically limit strict liability to specific situations, such as abnormally dangerous activities or product liability, and require proof of fault for most torts. Civil law systems often have broader strict liability provisions codified in their civil codes. For example, under French law, the guardian of a thing is strictly liable for damage caused by that thing, without needing to prove negligence. In Germany, strict liability applies to certain activities like operating a motor vehicle or keeping animals. Mixed jurisdictions may adopt a middle ground: for instance, in Quebec, strict liability exists for things under one's control, similar to French law, but also incorporates common law defenses. These differences affect who bears the cost of accidents.
6. What is market share liability and when is it used?
Market share liability is a legal theory used when a plaintiff is harmed by a product, but cannot identify which specific manufacturer made the product that caused the harm. Instead, the plaintiff sues multiple manufacturers who produced the same type of product, and each manufacturer is held liable for a share of the damages equal to its share of the market. This theory is often applied in cases involving generic products, such as a drug that many companies make. For example, if a person gets sick from a generic drug and cannot tell which company made the specific pill, they can sue all major manufacturers of that drug. The theory was first used in the DES (diethylstilbestrol) cases in the United States, where many women were harmed by a drug taken during pregnancy.
7. What is the general rule regarding a principal's liability for torts committed by an independent contractor?
The general rule is that a principal is not liable for torts committed by an independent contractor. An independent contractor is a person or company hired to do a specific job but who controls how the work is done, unlike an employee. The principal is not responsible for the contractor's negligence because the principal does not have control over the contractor's methods. For example, if a homeowner hires a plumber who accidentally floods the neighbor's house, the homeowner is usually not liable because the plumber is an independent contractor. However, there are exceptions where the principal may still be held liable, known as non-delegable duties. These exceptions apply when the principal has a special responsibility that cannot be transferred to the contractor.
8. What is the difference between offensive and defensive non-mutual issue preclusion?
Issue preclusion stops a party from re-litigating an issue already decided in a prior case. Defensive non-mutual preclusion is used by a defendant to prevent a plaintiff from re-litigating an issue that the plaintiff lost against a different defendant. Offensive non-mutual preclusion is used by a plaintiff to prevent a defendant from re-litigating an issue that the defendant lost against a different plaintiff. Courts are more cautious with offensive use because it may be unfair to the defendant. For example, if a company lost a patent validity case against one plaintiff, a new plaintiff might try to use that win offensively against the same company. Courts consider whether the defendant had a full and fair chance to litigate the issue in the first case.
9. What conditions must be met for a court to apply market share liability?
Courts typically require several conditions: (1) the product is fungible, meaning all manufacturers' products are identical and interchangeable; (2) the plaintiff is unable to identify the specific manufacturer despite reasonable efforts; (3) all manufacturers who could have made the product are joined as defendants; and (4) the market share of each defendant can be determined with reasonable accuracy. For example, in the DES cases, the drug was a generic pill with the same formula from many companies, and plaintiffs could not identify the maker. Courts also require that the product caused the harm and that the manufacturers acted negligently or were strictly liable. If these conditions are met, the court may apportion liability based on market share.
10. Compare offensive and defensive non-mutual issue preclusion in terms of who benefits.
Defensive non-mutual preclusion benefits the defendant by blocking a new plaintiff's claim on an issue already decided against a different plaintiff. For example, if a product liability defendant won against Plaintiff A on the issue of defect, Defendant can use that win defensively against Plaintiff B. Offensive non-mutual preclusion benefits the plaintiff by blocking a defendant from re-litigating an issue the defendant lost against a different plaintiff. For example, if a patent defendant lost against Plaintiff C on validity, Plaintiff D can use that loss offensively. Defensive use is generally more accepted because it does not encourage plaintiffs to sit back and wait. Offensive use is more controversial because it can be unfair to the defendant.
11. Compare the liability of a principal for an independent contractor versus an employee in tort law.
A principal is generally liable for the torts of an employee under the doctrine of respondeat superior, but not for those of an independent contractor. An employee works under the principal's control, while an independent contractor works independently. For example, if a delivery driver who is an employee hits a pedestrian while working, the employer is liable. But if the driver is an independent contractor, the employer is usually not liable. However, exceptions like non-delegable duties or inherently dangerous work can make the principal liable for an independent contractor. In contrast, for employees, liability is automatic for acts within the scope of employment. This difference reflects the control the principal has over the worker's actions.
12. How does the role of judges differ in tort cases between common law and civil law systems?
In common law systems, judges play an active role in developing tort law through their decisions, which create binding precedents. They interpret statutes but also fill gaps by reasoning from previous cases. In civil law systems, judges apply the written code strictly and have less power to create law; their role is to find the correct legal rule and apply it to the facts. For example, in a negligence case, a common law judge might articulate a new duty of care based on policy, while a civil law judge would look to the code's provisions on fault. In mixed jurisdictions, judges may use both methods, sometimes following precedent and sometimes relying on codified rules. This affects how predictable and flexible tort law is.