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The System Of Apportioning The Tortious Liability

Posted on:2008-02-20Degree:MasterType:Thesis
Country:ChinaCandidate:M HanFull Text:PDF
GTID:2166360242457754Subject:Civil and Commercial Law
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With the development of the modern industry, not just one but several defendants are responsible for the tort. Among these defendants, some are liable just for themselves, some for others; while some other share one responsibility and so on. In a word, defendants are assigned different liabilities out of diverse reasons, which are components of the system of apportioning the tortious liability. Tortious liability, based on Aristotle's corrective justice, which tries to rectify justice in transactions, is aimed at equalizing the benefit of both the plaintiffs and the defendants.Though torts try to protect the plaintiffs by making up for their damages and punishing the defendants, torts are not likely to sacrifice the defendants. However, torts aim at equalizing the two parties and rectifying the gain and the loss in the transaction. In this essay, the author tries to make clear how to maximize the justice among the plaintiff and the defendants and even within the defendants themselves. Assigning the liability among tortfeasors, the factors have to be considered are: A. the plaintiff, as making up for the plaintiff is the priority in torts; B. the defendant, for torts tries to balance the two parties, not sacrificing one to save the other; C. the benefit and the rights within the tortfeasors, concerning the compensation from other tortfeasors when one overpay his share.The system of the apportionment of the tortious liability can be divided into three categories. The first category is the division of liability of one's own and the vicarious liability. The responsibility is based on other's liability is vicarious liability; if not, is the liability of one's own, which is based on unlawful act, damage, fault, and the causation. Vicarious liability contains parental liability and master's liability, which protects both the plaintiff and the direct wrongdoers, because they are much weaker than the indirect wrongdoers and in some extent, they are not likely to compensate the plaintiff.The second category is the distinction of single liability and the several liability, divided by the number of the defendants. Single liability largely exists in the liability of one's own. joint and several liability (gesamtschuldverhaltns), devisable liability, supplementary liability and unechte solidaritat consists in several liability. Defendants' responsibility toward the plaintiff differs in diverse forms of liability. So is the legal effect among the defendants. On the whole, the degree of fault or the legal causative potency are the factors for the apportioning tortfeasors' own share.If the plaintiff has contributive fault to his damage, the defendant will be immunized from the part which the plaintiff is responsible, he can also be partially immunized while the plaintiff gains from the damage, which will effect the apportionment the liability among the defendants.
Keywords/Search Tags:apportionment of the liability, justice, vicarious liability, joint and several liability, several liability, unechte Solidaritat, supplementary liability
PDF Full Text Request
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