The contributory negligence doctrine: four commercial law problems
The law of contributory negligence is often treated as an afterthought by academics. It is routinely relegated to a position of relative unimportance in textbooks. This tendency is particularly pronounced in the commercial law sphere, apparently on the assumption that the contributory negligence doc...
| Autor principal: | |
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| Format: | Journal article |
| Publicat: |
Informa Law
2017
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| _version_ | 1826300842264756224 |
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| author | Goudkamp, J |
| author_facet | Goudkamp, J |
| author_sort | Goudkamp, J |
| collection | OXFORD |
| description | The law of contributory negligence is often treated as an afterthought by academics. It is routinely relegated to a position of relative unimportance in textbooks. This tendency is particularly pronounced in the commercial law sphere, apparently on the assumption that the contributory negligence doctrine is for the most part confined to “accident cases”. As a result, learning regarding the law of contributory negligence in the commercial law setting is particularly underdeveloped. The goal of this article is simple. It draws attention to the fact that the contributory negligence doctrine has profound implications for commercial law litigation. It seeks to advance learning with respect to it by engaging with four issues that arise in the commercial law context. It argues, first, that the decision in Forsikringsaktieselskapet Vesta v Butcher has been implicitly overruled by recent decisions of high authority with the result that apportionment for contributory negligence is unavailable in all types of contractual claims. Second, the merits of rules for which Vesta provides and alternatives thereto are critically considered. It is argued that most existing learning on this point is contaminated with serious confusion. Third, it is asked whether the apportionment statute applies in proceedings against auditors. Legislation arguably excludes it, which is a point that has hitherto been overlooked. Finally, the article addresses the intersection between the reflective loss principle and the law of contributory negligence. |
| first_indexed | 2024-03-07T05:23:17Z |
| format | Journal article |
| id | oxford-uuid:dfa97d6d-d8ad-4710-af65-1f960a47f31c |
| institution | University of Oxford |
| last_indexed | 2024-03-07T05:23:17Z |
| publishDate | 2017 |
| publisher | Informa Law |
| record_format | dspace |
| spelling | oxford-uuid:dfa97d6d-d8ad-4710-af65-1f960a47f31c2022-03-27T09:41:05ZThe contributory negligence doctrine: four commercial law problemsJournal articlehttp://purl.org/coar/resource_type/c_dcae04bcuuid:dfa97d6d-d8ad-4710-af65-1f960a47f31cSymplectic Elements at OxfordInforma Law2017Goudkamp, JThe law of contributory negligence is often treated as an afterthought by academics. It is routinely relegated to a position of relative unimportance in textbooks. This tendency is particularly pronounced in the commercial law sphere, apparently on the assumption that the contributory negligence doctrine is for the most part confined to “accident cases”. As a result, learning regarding the law of contributory negligence in the commercial law setting is particularly underdeveloped. The goal of this article is simple. It draws attention to the fact that the contributory negligence doctrine has profound implications for commercial law litigation. It seeks to advance learning with respect to it by engaging with four issues that arise in the commercial law context. It argues, first, that the decision in Forsikringsaktieselskapet Vesta v Butcher has been implicitly overruled by recent decisions of high authority with the result that apportionment for contributory negligence is unavailable in all types of contractual claims. Second, the merits of rules for which Vesta provides and alternatives thereto are critically considered. It is argued that most existing learning on this point is contaminated with serious confusion. Third, it is asked whether the apportionment statute applies in proceedings against auditors. Legislation arguably excludes it, which is a point that has hitherto been overlooked. Finally, the article addresses the intersection between the reflective loss principle and the law of contributory negligence. |
| spellingShingle | Goudkamp, J The contributory negligence doctrine: four commercial law problems |
| title | The contributory negligence doctrine: four commercial law problems |
| title_full | The contributory negligence doctrine: four commercial law problems |
| title_fullStr | The contributory negligence doctrine: four commercial law problems |
| title_full_unstemmed | The contributory negligence doctrine: four commercial law problems |
| title_short | The contributory negligence doctrine: four commercial law problems |
| title_sort | contributory negligence doctrine four commercial law problems |
| work_keys_str_mv | AT goudkampj thecontributorynegligencedoctrinefourcommerciallawproblems AT goudkampj contributorynegligencedoctrinefourcommerciallawproblems |