Economic consideration behind negligence-related rulings in Poland – dogmatic
heresy or a rational imperative?
Oskar Luty, 11.02.2011
1.
INTRODUCTION 2
2.
CONCEPT OF “NEGLIGENCE” UNDER POLISH CIVIL LAW 2
3.
WHAT IS “DUE CARE” EXACTLY? 4
4.
LAW&ECONOMICS IMPROVEMENT 5
5.
REDUCTIONISM VS. REAL-LIFE CASES 7
6.
ECONOMETRIC FORMULAE AND CIVIL COURTS 9
7.
HOW TO INTRODUCE THE IDEA INTO THE POLISH CIVIL LAW? 12
8.
SUMMARY 13
1. INTRODUCTION
There is a belief among Polish civil litigation lawyers that in 70% of the tort liability cases, a
lawyer may try to assess their eventual outcome with some degree of probability, meaning
that he or she may claim which party has better chances of success than the other.
Nevertheless, in the remaining 30% of cases, it is absolutely impossible to predict who is
going to win. One of the possible explanations of this practical drawback is that standards
behind tort law are not satisfactorily adjusted to the rapidly increasing pace of modern
civilization. The academic discourse on basic concepts of tort law is deeply theoretical and
does not yield fruitful results for practice.1
This paper shows how to enhance the predictability of negligence cases’ rulings by applying
law&economics’ developments. The author focuses on the law&economics’ efficient “due
care” model and indicates how this model might be transposed into the Polish tort law.
2. CONCEPT OF “NEGLIGENCE” UNDER POLISH CIVIL LAW
The core of the Polish tort liability regulations is based on “the rule of negligence” saying that
in order to hold one liable in tort, one’s willful or negligent wrongdoing must be proved. In civil
law cases judges are, therefore, obliged to assess whether the defendant’s behavior was
“negligent” or not, and their findings in this respect are crucial to the outcome of the case.2
According to some law practitioners, the concept of “negligence” is self-explanatory from
intuitive point of view, but is very likely to cause trouble if described theoretically.3
Historically, different views have been taken in this respect. For example, French civil law
doctrine4 emphasized the objective nature of “negligence”: a person causing harm to another
without a legal excuse was likely to be named “negligent” under this regime.5 The German
1
Z. Banaszczyk and P. Granecki suggest that these issues have not been comprehensively discussed in the civil law theory
because of the need to harmonize the Polish law with “legislative solutions of the Western democracies” – see: Z. Banaszczyk,
P. Granecki, O istocie należytej staranności.
See also: M. Sośniak "Elementy winy nieumyślnej w prawie cywilnym” (1975) 86 Zeszyty Naukowe Uniwersytetu
Śląskiego.152 and B. Lewaszkiewicz-Petrykowska, „Odpowiedzialność deliktowa za własne czyny w prawie cywilnym krajów
europejskich”. (1998) 2 Kwartalnik Prawa Prywatnego. 224, 230.
2
See: B. Lewaszkiewicz-Petrykowska, „Problem definicji winy jako podstawy odpowiedzialności z tytułu czynów
niedozwolonych”.(1959)14 Zeszyty Naukowe Uniwersytetu Łódzkiego. 27.
3
4
See: art. 1382 of the Napoleon Code.
5
See: B. Lewaszkiewicz-Petrykowska, ibidem. 28 and French lawyers cited therein (Bosce, Lalou, Leclerq, Lefevre, Planiol,
Rabut and Wilems).
2
system, in turn, generally approved of the “subjective” doctrine, under which “negligence”
was linked both to the wrongdoer’s intent and the effect of his act or omission.6
Many legal systems, including the Polish one, have developed concepts stemming from both
of the above mentioned approaches. One of the most formidable Polish lawyers, Roman
Longchamps de Berrier, proposed that “negligence” should be understood as subjective
component of the “fault” (wina) concept, the objective one being “unlawfulness”, i.e. „any
inappropriate behavior, meaning any behavior infringing upon the law, ethics or even any
due care obligation which should be observed by a member of the society in order to prevent
a harm from being inflicted upon another individual”7. Many authors, however, claimed that
the concept of “fault” should not encompass the notion of “unlawfulness” but should comprise
only strictly “subjective” elements, such as wrong intention and lack of “due care”.8 Some
state that „fault” should be understood as admissibility to raise objections with respect to a
given behavior.9 This last concept has been dubbed “normative theory of fault” and is now
considered a leading one in the Polish tort law.10
The “normative theory of fault” has but one flow. Application of the said theory makes it very
difficult to distinguish between premises of “unlawfulness” and “negligence”, as the
“objective” breach of legal or ethical norms is in most situations sufficient to ascertain liability.
The “subjective” state of the injurer’s mind does not play an important role and is in practice
reduced to verification whether the injurer is mentally healthy and may be held liable taking
consideration of the criterion of age. This theory is reflected in the doctrine of “fault gradation”
which distinguishes gravity of “fault”, such as e.g. “gross negligence”. Thus, in the course of
assessment whether an injurer is “negligent” or “grossly negligent”, its mental state is
irrelevant. What matters is the type (grade) of “due care” standard breached.11 Therefore, the
easier it is to follow a given “due care” standard, the higher degree of “fault” may be found
(culpa lata est non intelligere quod omnes intellegunt).12
6
B. Lewaszkiewicz-Petrykowska, ibidem. 33.
7
R. Longchamps de Berier, Zobowiązania. 234.
8
See: M. Sośniak, Elementy winy nieumyślnej. 158.
9
See: A. Stelmachowski, Zarys teorii. 211., B. Lewaszkiewicz-Petrykowska, Problem definicji winy. 43.
10
Z. Banaszczyk, Komentarz do Kodeksu cywilnego. K. Pietrzykowski 3d ed., C.H.Beck 2002. 930, 931.
See
also:
J.
Dąbrowa,
System
prawa.
773;
S.
Grobel
Pojęcie
rażącego
niedbalstwa.
703;
B. Lewaszkiewicz-Petrykowska, Zakres niedbalstwa. 69; K. Popiołek, Komentarz do Kodeksu Cywilnego”.1150; Z. Radwański,
Zobowiązania. Część ogólna”. 250.
11
See, however: W. Warkałło, Gradacja winy. 302, who argues that finding of “gross negligence” is dependent upon intention of
the injurer.
12
3
3. WHAT IS “DUE CARE” EXACTLY?
The “normative theory of fault” emphasizes the importance to properly identify and apply the
“due care” standard in the course of assessment whether a person is liable for negligent act
or omission. The Polish law introduces the concept of “due care” in art. 355 of the Civil Code
pursuant to which: “the debtor is bound to apply due care generally required in relationships
of a given kind (due care)”.13
The Polish jurisprudence and judiciary share a common understanding of the “due care” as
concept relating only to behavior and not to mental state of the injurer.14 This means that the
injurer may be found liable if he commits a tort, even if he stayed maximally focused on the
instant activity.15 In every potentially harmful situation, a person is always bound to apply
“due care” standards, set forth by the society which are subject to change in the course of
the society’s development.16 These diligence standards17 may be derived from provisions of
law, by-laws18, deontologies19, technical norms and “common sense” directives that ought to
be known by all circumspect society members20.
The above shows clearly that the concept of “due care”, despite being a crucial one for
“negligence”-based liability, is vague. Neither provisions of law, nor jurisprudence provide
clear answer to a number of essential important issues.21 The civil law theory indicates that
there might be plenty of “due care” standards applicable in a given situation.22 It is also
argued that the given “due care” standards are dependent upon the characteristics of their
13
Despite ambiguous wording of the said article, it is generally applied to both contract and tort law. See e.g.: M. Safjan,
Komentarz do Kodeksu cywilnego. 737, 738; B. Lewaszkiewicz-Petrykowska, “Wina jako przesłanka odpowiedzialności z tytułu
czynów niedozwolonych”, (1969) 2 Studia Prawno-Ekonomiczne; Z. Radwański Zobowiązania. Część ogólna. 162; M. Sośniak,
Należyta staranność”, Katowice 1980.169 et al.
14
See: M. Krajewski, Niezachowanie należytej staranności. 38 and judicial decisions cited therein.
15
Ibidem. 37. The author uses as an example facts of the Supreme Court case of 27.01.1972, case No. I CR 458/71.
See: M. Sośniak, Elementy winy nieumyślnej. 161, who argues that abstract “due care” standard is subject to modification
when conditions to which it applies change.
16
M. Boratyńska and P. Konieczniak indicate that the term „diligence” is logically inferior to term „care”. See: M. Boratyńska, P.
Konieczniak, Naruszenie zasad ostrożności. 50. Diligence rules are defined as practical behavior (praxeological) norms, the
purpose of which purpose is to maximize safety and effectiveness of a given activity.
17
See: M. Boratyńska, P. Konieczniak, Naruszenie zasad ostrożności. 52. The authors indicate that the source of “diligence
rules” for medical doctors may be found in medical manuals, medical procedures, by-laws etc.
18
19
M. Sośniak, Należyta staranność”. 179.
20
See, cases cited in: M. Sośniak, Należyta staranność. 163 and J. Dąbrowy, Wina. 119.
See e.g.: M. Sośniak, Należyta staranność. 171. Sośniak presents a viewpoint that the characteristics of “due care” standard
in each case depends upon additional factors – the type of obligation, certain personal qualities of a debtor etc. The author
additionally points to the necessity to set the level of requirements with reference to the social scale of evaluations.
21
See eg.: M. Sośniak, Elementy winy nieumyślnej. 161 and W. Czachórski, System prawa cywilnego, Z. Radwański ed., vol.
III, part 1. 548, who recapitulates views expressed in the doctrine of law and claims that “the prevailing view is that there are
more patterns, and examples indicated comprise of group patterns along with explanation that one universal measure is a nonusable fiction”.
22
4
addressees (they are “individualized”).
23
This means that in the same social situation
different “due care” standards ought to be applied to a healthy athlete and to a sick, older
person. This is particularly important with reference to professional liability and expert “due
care” standards. These standards may also be diversified if different values are at stake in a
given situation (the risk of light injury vs. risk of death).24
The “due care” standards are thought to be at least legally sanctioned patterns which must
be followed by all individuals. However, the concept lacks transparency. First of all, the “due
care” standards are in many instances not formally ascertainable (they are not promulgated
or published). Secondly, some standards might contradict each other. Thirdly, the standards
change over time, as new knowledge or technology steps in place. Fourthly, one may never
be sure where is the borderline for further “individualization” of the “due care” model (e.g. is
the “due care” standard harsher for a cardiology specialist with 20 years of practice than for
the one who has practiced for 15 years; are some subjective characteristics, such as sex or
physical agility, to be taken into consideration as a basis for differentiation etc.).25
4. LAW&ECONOMICS IMPROVEMENT
The concept of „negligence” and „due care” has been subject to consideration
of
law&economics authors, such as e.g. R. Cooter, T. Ulen, H.B. Schaefer, A. Schonenberger
and S. Shavell.26 R. Cooter and T. Ulen introduced a “due care” model operating on the
following assumptions: there is a certain degree of probability given exact level of injurer’s
due care that the victim will suffer losses.27 The probability of an accident changes
accordingly with the shift in degree of care taken by the injurer, which constitutes injurer’s
cost. The probability of accident times its potential magnitude equals cost to the victim (the
See: M. Sośniak, Należyta staranność”. 176 who states that „forming a superior due care standard, the [Polish] civil code
[does not refer to any fictitious („ideal”) person. The above has not prevented the doctrine and jurisprudence from creating
detailed personifications (…): careful driver, circumspect sportsman, circumspect surgeon (…).”
23
W. Czachórski, System prawa. 548, 549. Similarly, M. Sośniak, Należyta staranność. 185 who states that: “sometimes (…)
the expected level of [due care]] standard is affected by an object o fan action (life, health).”
24
25
M. Sośniak, Należyta staranność”. 203-204.
Presented on the basis of the works of the following authors:: R. Cooter, T. Ulen, Law and economics, 1998. 270 – 294; H.B.
Schafer, A. Schonenberger Strict liability vs. negligence.: Encyclopedia of Law and Economics” (1999). 597 - 624; S. Shavell,
Economic analysis of accident law”. 5 – 46.
26
Other assumptions: agents’ rationality, risk-neutrality of agents. Some analytical models take consideration of the variable
magnitude of loss and assume that it is interdependent with the level of due care applied. See: W. Landes and R. Posner, The
economic structure of tort law. 61. In fact, it is easy to imagine the situation where the level of due care applied will affect
magnitude of loss incurred only and not the risk of its occurrence. An exemplification of such a situation may be fastening seat
belts while driving or construction of bands separating lanes on the road, which does not not affect the frequency of occurrence
of collisions and skidding but limits losses and damages. The law&economics authors differ between two types of the “due care”
models. S. Shavell, Economic analysis of accident law. 6.The first one (unilateral model) assumes that the victim cannot
influence the probability and magnitude of the potential injury. The second (bilateral model), to the contrary, proposes that the
victim may effect some influence on these values.
27
5
risk cost). The model is also based on the assumption that if more and more care is taken,
the probability of injury is lowered at decreasing margin.28
The real-life example of the model would be a situation where a medical doctor treats
jaundice.29 While performing his duties, the doctor must take some precautions in order not
to spread the viral infection among other patients. There are several ways to achieve this
goal and all of them assume some costs.30 The probability of potential injury is lowered if
care costs are increased, however, some degree of probability of such an event cannot be
excluded at all. This means that after certain level of care is reached, each PLN 10 spent on
additional care measure will decrease the risk cost by less than PLN 10.
This is illustrated in the diagram below, where magnitude of loss is assumed at PLN 1,000
and initial probability of jaundice contraction with no care taken by the hospital equals 15%. If
cost of care measures taken is PLN 30, the probability of injury is 10% and where care
measures consume PLN 60, it drops to 8%. Therefore, if the hospital does not effect any
precautions the cost of injury risk (probability times magnitude) equals PLN 15031. If care
measures assume spendings at the level of PLN 30 and PLN 60, the cost of injury risk
equals to respectively PLN 100 and 80.
28
This means that each subsequent utility measurement unit (util) spend on care, decreases the expected injury in the lower
proportion. The construction of decreasing marginal level of injury is based upon the assumption that the risk of injury may never
be entirely eliminated.
29
Similar facts were the basis for the judgment of the Polish Supreme Court dated 10.7.1998, case No. I CKN 786/97, publ. in
(1999) 3 Prawo i Medycyna.
30
Example: time devoted to frequent hand washing, cost of spare shoes, or cost of shoe covers, costs of disinfection and time
consumed for using them, tiredness caused by constant focus during cleaning works or treatment related actions, etc.
31
Numbers partly based upon the analysis conducted by S. Shavel in Economic analysis of accident law.
6
The main economic conclusion enshrined in the presented model is that under the model’s
assumptions, there exists an optimal, Kaldor-Hicks-efficient level of care to be taken. If the
hospital undertakes such care, the overall social costs of the interaction are the lowest
possible. In the model above, the efficient level of care is when the costs of hospital’s
precautions equal PLN 30. Any further precautions will not be efficient and will lead to the
raise in the overall social cost. The model draws a clear standard and shows what the
efficient “due care” level is.
In my opinion, such a model has a revolutionary capacity in civil law theory as it provides for
a formula, based on sound social value such as efficiency. The model allows for
quantification and objective assessment whether the “due care” optimal standard is met or
not. The said formula may be used as a basic norm (“meta norm”) for construction of all “due
care” standards. Simultaneously, it may increase the transparency of the “due care” concept
and be applied by lawyers in course of the negligence-related cases.
5. REDUCTIONISM VS. REAL-LIFE CASES
The presented model proposes an economic standard for ruling in negligence cases. The
standard, if applied properly, leads to socially efficient judicial decisions. However, some
authors32 argue that economics are not always reliable because human behavior tends to be
irrational and moreover people do not quantify and then weigh the risks against the costs of
See e.g.: E. White, Tort law in America: An intellectual history”, 1980. 220-223 or G. Schwartz, “Contributory and comparative
negligence: a reappraisal”, (1908) 87 Yale Law Journal. 697.
32
7
care. They state that people would have to be omniscient robots, calculating with the speed
of light all potential consequences of their actions or omissions. Moreover, people are
constrained in their choices as they lack knowledge of risk factors and care standards.
Nevertheless, B. Brożek and K. Pawłusiewicz imply that reductionists are well aware of their
shortfalls.33 The simplified models (as the one presented in this paper) are not means to
produce undeniable, absolute answers or patterns. Reductionism is an analytic methodology
and it does not yield ready-made solutions, it only leads towards them. There is also a
constant mismatch as regards the assumption of rationality.34 Economics understands
“rationality” as objective valor of a given behavior. It does not have anything to do with
mental state or intellectual capabilities of an actor. Sometimes people act rationally, yet they
are unaware of it.35 In this context, even animals or microbes may act rationally.
Reductionists do not hold their posts, they also launch attacks on more complex cognitive
approaches. They put in question the classic legal approach, specifically saying that
language and arguments lawyers use to describe effects which legal norms have on society
are too often based on improper assumptions. In their work lawyers tend to concentrate on
details of factual state of affairs and formal prerequisites of application of a given legal
institution. For an economist, lawyer's work is chaotic and lacks clear structure of
assumptions and generalizations. The outcome of such work, i.e specific legal arguments,
are “anecdotic, pragmatic and deprived of formal analytical structure”.”36 Additionally, “legal”
analysis does not take sufficient consideration of all the social costs related to the
introduction into a legal system or application (interpretation) of a given legal norm. On the
contrary, the model presented by economic doctrine is internally coherent.37
In my opinion, pluralism of theoretical views in law will always have a beneficial effect,
provided that such pluralism does not violate liberties and legal safety of individuals. Such
view taken, the law&economics may fruitfully contribute to the general theory of civil law.38
33
B. Brożek, K. Pawłusiewicz, „Prawo karne w świetle ekonomicznej teorii prawa (uwagi krytyczne). (2002) 2 Państwo i Prawo.
34
Emphasized by R. Posner, Economic analysis of law. 16.
35
Institutional school of economics emphasizes the meaning of social institutions for rational choice. Institutions may convey
social norms advocating rational and efficient behavior.
36
See also: P. Burrows and C. Veljanovski, The economic approach to law. 8, 14-17.
37
See also: B. Brożek and K. Pawłusiewicz, “Prawo karne w świetle….”. 54.
Ontological pluralism in law is advocated in the same context by B. Brożek and K. Pawłusiewicz in “Prawo karne w świetle….”
54.
38
8
6. ECONOMETRIC FORMULAE AND CIVIL COURTS
Richard Posner argued that common law courts are building precedents in an efficiencydriven way and he described the entire legal system basing on efficiency-wise categories.39
Just like other representatives of law&economics approach, he pointed to Learned Hand’s
judicial decision reached in 1947 and based on the same assumptions as the economic
model presented in this paper.40 In ratio decidendi of the said judgment, the judge proposed
the following formula (commonly known as Hand Formula):
B < PL
where B stands for burden of precautions, P for accident probability and L for magnitude of
losses. Learned Hand stated that the defendant ought to be held liable if the cost of his
action was lower than the cost of the expected magnitude of losses times probability of
accident. In 1973 John Brown41 proposed to amend this development by applying the socalled Incremental Hand Formula which is based on incremental not absolute values:
ΔB < ΔPL.
Thus, what Incremental Hand Formula requires from the judge is to compare shift in
precautions’ expenses with downfall in risk-related cost of accident instead of weighing
absolute values only. This means that recognizing a negligence case, the court should
analyze what was the beneficial effect of the additional care taken measured against the
decrease of probability times loss magnitude factor.
This view was supported by M. Grady who stated that judges almost never decide upon
efficient care standards. 42 Grady argued that what courts actually do is appraising “untaken
precautions”, i.e. assessing whether the defendant could take some other precautions to
avoid the injury and if yes, should he had taken them. C. Ott and H.-B. Schäfer concurred
with Grady and stated that the legal system will eventually produce efficient standards if
several negligence cases of the same kind will be tried by the court which applying the same
concept.43
39
R. Posner, Economic theory of law.
40
United States v. Carroll Towing, 159 F.2d 169 (2d Cir 1947).
41
J. Brown, “Towards an economics theory of liability” (1973) 2. Journal of legal studies. 323-350.
42
M. Grady, „Untaken precautions”, (989) 18. Journal of Legal Studies. 139.
43
C. Ott, H.-B. Schäfer, „Negligence in the civil liability system”, (1997) 17. International Review of Law and Economics. 15.
9
The standard proposed by law&economics is unknown to Polish courts. Even if judges take
into consideration the relationship between precaution costs and risk-related costs, they do
not tend to present it in ratio decidendi. There are only few verdicts which base on economic
rationality. One of them referred to the car accident case in 1983.44 The plaintiffs dragged a
damaged car with lights out along a dark public road in the forest, in the middle of a night in
an attempt to move it into a zone with public lanterns. The damaged car was hit by another
one, moving fast from behind at a speed of 70 kilometers per hour. The plaintiffs filed the law
suit for damages basing their claim upon art. 436 sec. 2 of the Polish Civil Code saying that
“in the case of a collision of mechanical means of transport propelled by natural forces, the
said persons may claim from each other the repair of the damage suffered only on the
general principles”. As the two cars were “propelled” within the meaning of the said article,
general principles of liability are to be applied, i.e. to be found financially liable, the defendant
must first be found “negligent”.
The plaintiffs claimed that the defendant was “negligent” because the speed he was driving
at was excessive taking consideration of the conditions on the road (the maximum speed
administratively allowed being 90 km/h). The court decided that the defendant was not
speeding and he was not supposed to be prepared to stop in front of the dark object which
appeared unexpectedly on his lane. Otherwise, to stop safely, the defendant would have to
drive at 30-50 km/h. The court also stated that the plaintiffs did not use the warning triangle
and misused the light source they possessed – instead of giving signals to cars moving
behind, they used it in order to light up the way before them. The claim was therefore
dismissed.
The underlying logic of the judgment is parallel to that of the Hand Formula. The court stated
that the “untaken precaution” would be a 50% decrease in speed, which would make it
possible for the injurer to stop before the damaged car in the night (B). The court also stated
that probability of encountering a dark damaged car (P) moving in the middle of the road lane
was low. Thus, the court inferred that:
B > PL
and the case must be dismissed. On the other hand, the plaintiffs did not take „due care”, as
they did not use the light source properly and omitted to use the warning triangle.
44
Supreme Court judgment of 18.04.1986, case no. III CRN 57/86, publ. in OSNC 1987/8/117.
10
In another case, a husband to a deceased woman sued the psychiatric hospital for
damages.45 The facts of the case were as follows: in 1991 plaintiff’s wife was taken to
psychiatric hospital for 10-day long observation which was to be conducted in the closed
section of the hospital. After this period, due to the alleged improvement in the patient's
mental health, she was moved from the closed section to the therapy section where
supervision was more lenient and patients could freely walk, wear their own clothes, and
meet in the hospital canteen. One afternoon, the woman left the hospital, taking her clothes
with her (it was winter) and committed suicide. Her disappearance was discovered only the
next day. The defendant hospital argued that it has not violated any provisions of law related
to treating mentally ill patients as such provisions had not been adopted at all. The first
instance court shared this view, claiming that despite the fact that the hazard actually
existed, patients should not be kept in isolation, under total supervision as this violates their
constitutional rights. The court also stated that there is no causal nexus between the
hospital's omission (no supervision over patients) and the damage incurred. Additionally, the
court ruled that leaving hospital by the woman was not causally significant as being a free
person she might have left the institution whenever she wanted to.
Recognizing the case in the second instance the appellate court took consideration of the
following facts: the plaintiff's wife was not previously hospitalized, she had suicidal
inclinations and additionally, suicides are committed by patients generally in the periods of
noticeable improvement of their mental condition. The court stated that moving the plaintiff's
wife to the therapy section of the hospital was connected with major risk, and “the greater the
risk, the higher need of due care application”. The court also raised that the simple
preventive measure i.e. forbidding patients to wear their own clothes could have prevented
the plaintiff's wife from escaping in order to commit suicide, in particular due to the fact that it
was winter. The appellate court also disagreed with the conclusion reached by the first
instance court as regards the non-existence of the causal nexus between the hospital’s
omission and the woman's death. The appeal was found grounded.
In the above judgment the court's line of reasoning was interestingly similar to Hand Formula.
The behavior standard was formulated by the court, however, it was not very precise. The
court ruled that: "following the voice of science, it should be assumed that despite the fact
that modern psychiatric methods are openly against closing mentally ill patients, limiting their
freedom etc., the therapeutic institutions are not relieved from the obligation to have patients
under their care, in particular when such patients are dangerous for themselves and others,
45
Appellate Court in Poznań, 28.06.1995, case No. I ACr 39/95, publ. in OSA 1996/7-8/36.
11
as freedom granted to mentally instable persons increases the risk of liability of such an
institution." The standard of behavior set by the court in the judgment in question is not very
specific, however it takes consideration of a number of important facets of behavior in similar
situations, i.e. the obligation to deny patients access to their clothes, obligation to provide
proper supervision as well as immediate action after disappearance of a patient has been
ascertained.
7. HOW TO INTRODUCE THE IDEA INTO THE POLISH CIVIL LAW?
C. Veljanovski pointed out that law&economics may perform three main functions in law:
technical,
supra-technical
and
rhetorical.46
Law&economics
provides
lawyers
with
econometrical and mathematical modules and tools for calculation, modeling and prediction
purposes and thereby serves the technical function. The supra-technical function refers to
rendering normative postulates, such as the postulate presented in this paper, and “finding”
the economic sense (or nonsense) in legal institutions. Last but not least, the rhetorical
function provides lawyers with rational, efficiency-based arguments for legal discourse
purposes. This shows that law&economics arguments relating to “due care” standards may
be transposed to Polish law and become the means of technical support for existing
dogmatic constructs or as a “supra-basis” to create new ones.
From the civil law perspective, the underlying idea behind the tort law is a “principle of
compensation”. The main drivers behind this principle are legal protection of an individual
harmed by the tortuous action of another and strive to compensate its loss. From the
economic perspective, the preventive function of the tort law is much more important. The
main drivers behind the efficient tort regulations would be, in turn, to dissuade individuals
from engaging in harmful and at the same time inefficient interactions (thus causing
excessive social costs) and moreover incentivize them to take efficient care in order to avoid
liability.47
In my opinion however, the potential conflict between the “principle of compensation” and
“principle of efficient prevention” is illusionary. First of all, law&economics’ postulates may
naturally be applied only in negligence cases (as opposed to willful misconduct cases). The
key element of negligence cases is ascertaining a “due care” standard. In the vast majority of
cases, the standards are not regulated by the law and therefore the model proposed by
law&economics’ authors cannot infringe upon any legal regulations. Secondly, if the
46
C. Vejlanovski, Economic analysis of law. 80.
47
See G. Calabresi, The costs of accidents. 24.
12
legislator thinks that compensatory function should prevail in a given kind of interaction, it
may always base the civil liability not on negligence rule, but rather on strict or objective
liability principles (such as in regulation of e.g. state, traffic or product liability under the
Polish law).
From dogmatic point of view, there are many ways to “fit” the economic understanding of
“due care” into civil law. Of course, the easiest way to achieve this would be for the legislator
to amend the law and provide for an additional tort law provision based on the Incremental
Hand Formula. Nevertheless, there are only few cases imaginable in which factors, such as
risk, magnitude of loss and cost of care, could be calculated mathematically.48 In practice, the
law&economics formula should be applied as an intellectual “weighing” instrument, i.e. it
should require from the judge to think using the economic categories. Therefore, the legal
regulation would have to be based on general clauses instead of algebraic variables.
Still, the new legislation is not the only option. The law&economics postulates could be
introduced conceptually as a formative component of the “due care” standards. If “due care”
standards are understood as socially-expected, custom-derived norms, it seems admissible
to say that these patterns ought to be efficient. Even if no straightforward Polish law provision
requests an individual to act efficiently, the reception of law&economics postulates might be
well supported by available law interpretation tools. R. Stroiński argues that law&economics
postulates should be implemented by means of dynamic interpretation of law.49 The author
points out that this would allow for change of the sense of a legal norm without necessary
change to legal text from which it is derived. Having in mind the general tort liability clause
regulated in art. 415 of the Polish Civil Code, this could be effected by the dynamic
interpretation of the said provision, so far as this provision applies to negligent acts or
omissions.
8. SUMMARY
The legal and economic approaches are only seemingly incoherent from axiological point of
view. It is true that the law focuses on justice, equity, compensation and moral appraisal of a
An example of such case could be the Germany’s BGH judgement of 13.07.1989, case No. III ZR 122/88, publ. in Neue
Juristische Wochenschrift 1989, pp. 2808-2809 which is subject to many references in German law&economics literature. The
facts of the case were as follows: German road administration was legally bound to supervise one of the public roads in which
many accidents involving crashing into wild animals took place. The accidents resulted in damages to cars and injuries to
people. The administration was informed of accidents and yet did not take any preventive measures whatsoever. One of the
injured drivers sued the administration for damages, upon gaining access to accident statistics. He indicated that the cost of
building a fence along the road as compared to the insurance payments supports the argument that the administration should
have built that fence to prevent further injuries. The court upheld this argument and found the administration negligent and liable
towards plaintiff. For more details see: H. Kötz, „Deliktsrecht”, Luchterhand, Neuwied und Kriftel, 1998, 18-19 and H.
Kerkmeester, L. Visscher, „Learned Hand in Europe”. 10.
48
49
R. Stroiński, Law and economics (Ekonomiczna analiza prawa). 576-583.
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given act or omission. It is equally true that the modern civil law literature emphasizes the
need to assure objective character of the civil law, that is to render the subjective
characteristics of injurers (mental state, individual capabilities etc.) irrelevant for adjudication
purposes. That is achieved by means of application of doctrines similar to “normative fault
theory”.
Nevertheless, one may not (and should not) expect the courts to turn real-life situations into
numbers and analyze human interactions through filters of mathematical formulae. Moreover,
the civil law provides for equitable mechanisms, protecting individuals from harsh and
formalistic decisions. The example would be a general prohibition to misuse rights (art. 5 of
the Polish Civil Code). Analogically, a protective effect of the “causal nexus” principle may be
pointed out. Therefore, the legal institutions already in force protect the injurer from the
overflow of liability – particularly in cases where liability would be economically justified and
yet contrary to equity or “common sense”: concepts so much valued by lawyers over
centuries.
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