| Torts usually would cause the victim physical damage or economic loss. In someparticular conditions, the victim receive gains through the same torts. Considered thegoal of compensation, the question raised that which gains should be offset, and if theanswer is yes, how to offset the gains?There are two different theoretical origins of such questions. The first theoryfocus on the condition if the there were no damage at all, and the second theory focuson the requirement that the victim should not earn profits through the damage. Boththe theories intent to divide the profit fairly. These two theories are accepted bydifferent countries. German uses the first theory, while the other countries believe inthe second theory, for example Britan, USA and France,etc. The second theory ismostly welcomed in our country, but somehow, the flaws of it should be made up byother facts.The gains offsetting the losses should meet three constructive requirements,which are the actual physical damage or economic loss and the victim receivingprofits and the causation between the damage and profits. There are two differenttypes of profits, which are positive profits and negative profits. Meanwhile, thetheories of the causation has been developed in three periods. The first period was thatthe damage and profits should be caused from the same source, while the second period discovered the causality theory. Nowadays the causation is mainly decided bythe intention of laws and regulations. Thus analysing the constructive requirements,especially the causation between the damage and profits, we will have a clearer imageof how to offsetting the gains from the losses.Generally speaking, offsetting the gains from the losses requires to minus theprofits from the damage. In other conditions, similar move is taken in juspostiliminum, while other facts should be taken into consideration. The most commontorts are payment by third parties, new for old, unexpected luck, wrongful birth,wrongful pregnancy and saving personal tax. To solve the particular problem, peopleneed to take into consider of laws and regulations, public opinions, common sense,and the possibility of operating such rules. There are little doubt of offsetting thegains from the losses if laws and regulations could be easily found, but the fact isthere are still numerous situations to which no laws or regulations could be found toapply. In the situation of payment by the third parties, new for old and saving personaltax etc, common sense and the social tradition should be reviewed seriously. What’smore, in wrongful birth and wrongful pregnancy, such offsetting rules should notapplied against fairness principle. This paper intends to analyse common situationsthat the losses need to be offset by the gains, and try to summarize several rules ofsuch applications. |
