Introduction to ECO
ECO occurs in cases where there has been an injury/loss in a situation without a contract; if there is a good reason to shift the injury to someone else, then the injury falls onto the other person through compensation (usually monetary)
ECO have been made more prominent as there are more ways to cause harm, as people are less willing to put up with fate, and as the existence of liability insurance has left injurers feeling protected and left victims seeking compensation through suit.
Financial compensation provides the principal response for resolving “accident” cases shifting the loss suffered by the victim to someone else (ex. The offender, society) who must bear the burden of the injury. The reason to shift the loss would stem from the behaviour of one party.
We can situation ECO within two systems of law:
1.Common Law – It has been developed since the Middle Ages and has become uniformly applied throughout the whole UK, through an accretion of precedents. The law has developed in an unplanned and incremental fashion, based on judgements. Certain written statutes, however, take precedence in legal decision-making.
Common Law courts have tended to separate areas of liability and that each protects a particular form of breach of obligation.
2.Civil Law – This law has been organized through codification based on Roman Law. It takes the form of written reason where the starting point is the text. The judge applies the law but also relates the cases to precedents. The Code Napoleon and the Burgeliches Gesetzbuch are the two founding documents of modern civil law.
Civil Law courts regard ECO as part of a larger set of law of obligations. All rights are protected and the breach is seen as a starting point (a.1457). Nevertheless, ECO have developed mainly through case law.
ECO
Criminal Law
Aims to compensate for injury/loss
Aims to repress/punish offenders
Seeks remedy via compensation
Seeks remedy via loss of freedom, fine
Pursues individual justice
Pursues “public interest”
Character of behaviour is less important
Character of behaviour is central
Necessitates the presence of damage/injury
No necessity for damage/injury to arise
Responses Provided by ECO
The same victimization event might lead to both criminal prosecution and an Extra contractual obligation claim. They both share common goals: deterrence, prevention, vindication of the victim’s rights, punishment, and preservation of order in society. However, these goals are secondary to ECO which primarily seeks to remedy injury via compensation.
The rules of ECO are
erests of the weak against the powerful.[2] They assist/advantage the weak in their claims.
4. Instrumentalist approach: we specify particular goals and ask where do we need to shift our focus to achieve the goal?
Those goals/aims [ECO, Instrumentalist model] might be:
A. Compensation in which the victim must be helped by the courts. This is the predominant conception in ECO. Note: Judges may often be prompted to grant compensation where the rules may not apply because of the debtor’s liability insurance that provides a source for compensation. In other cases, UI or VC Funds may replace the need to resort to ECO.
[1] For example: victims of state-wide vaccination programs may receive compensation from a special fund, because the risk of harm should not rest on the vaccinator, because the social interest in the program.
[2] For example: victims in product liability claims (where a consumer sues a corporation) are aided by the law’s presumption of fault that the product is assumed to have caused the harm. This applies in Quebec only.
