Any right corresponds to an obligation or an obligation. If the right is legal, so is the obligation; If the law is contingent, imaginary or moral, so is the obligation. The true meaning of legal damage is illustrated by two maxims, namely injuria sine damno and damnum sine injuria. Rather than focusing on categories of torts, it is more fruitful to first conceptualize tort liability in relation to the elements that a claimant must prove in order to obtain compensation. For example, a defendant commits a battery when acting with intent to cause harmful or offensive contact with the plaintiff, and that contact is in fact the result of his action. If an applicant meets the burden of proof for these elements, he or she has proven a prima facie case of assault. A defendant who commits such a defined battery may nevertheless escape liability by asserting a defence. For example, a defendant in an assault action could avoid liability by proving that he acted in self-defense or that the plaintiff consented to the otherwise unlawful touching. Some find it useful to distinguish between strict liability and fault-based liability with respect to the content of the underlying legal obligation. In the case of blasting – an activity traditionally governed by strict liability – the dynamiter is required not to injure by blasting.
In the case of driving – an activity traditionally regulated by fault-based liability – the driver has a duty not to negligently injure while driving. No matter what care it takes, the blaster is not doing its duty if its detonation in the right way is causally related to another person`s injury or another person`s property. On the other hand, the driver does not fulfill his duty only if he injures someone through negligence. Many believe that assault and trespassing are a paradigmatic private injustice and therefore paradigmatic unlawful acts. The conception of tort in the sense of the paradigmatic case suggests that tort law takes precedence in identifying injustice, which shares certain important normative characteristics with trespassing or assault – for example, that a tort implies the intention to disregard certain protected rights of others; And perhaps the fundamental rights protected by tort liability are those relating to the security of persons and property. It also suggests that the purpose or purpose of tort law is to redress that wrong. From this perspective, the fundamental concepts of tort law appear to be “rights”, “torts” and “reparation”, and the two objectives of tort theory are to identify the principle linking the category of torts relating to tort and to justify the torts distinction(s) adopted by tort law. We will explore this approach to tort law in more detail below. In contrast, the theory of remedial justice holds that tort liability is not simply a cost-shifting mechanism. There are costs associated with a levy, but we would not say that by levying fees or taxes, we hold people accountable for their wrongdoing. On the other hand, when we hold a defendant liable in tort, we are saying that he has committed an injustice – bodily harm, assault, negligence or otherwise – and it is in relation to that injustice that he must be compelled to pay. For this reason, the theory of corrective justice emphasizes that different legal responsibilities are not simply interchangeable tools for transferring costs in the legal toolbox, as they can have radically different expressive consequences, and some are appropriate, appropriate, or appropriate responses to the misconduct in question.
while others are not. Tort law is designed as “a tool to get people to adhere to reasonable standards of behaviour and to respect the rights and interests of each individual.” While they do not deny or minimize the importance of the concept of injustice in understanding tort law, other theorists tend to express its central importance in tort in the form of a more general formulation, namely the duty that each of us has in the exercise of various activities not to harm those who endanger our businesses. From this point of view, the fundamental duty in tort matters is not to harm others (whether punctual or unjustified). Corrective justice theory – the most influential non-economic perspective on tort law – understands tort law as a first- and second-order system of obligations. First-order obligations prohibit conduct (e.g., bodily harm, assault, and defamation) or the imposition of a violation (one-time or negligent). (Some theorists believe that corrective justice says nothing about the character of these norms; others think it helps define their scope and content.) Second-order obligations in tortious matters are obligations of reparation. These obligations arise in the event of a breach of the obligations of the first order. The fact that second-order obligations thus flow from the principle of corrective justice, which (in its most influential form) states that an individual has a duty to make reparation for unlawful losses caused by his or her conduct.
