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Towards Need-Oriented General Principles

  • Thomas Wilhelmsson
Chapter
Part of the Law and Philosophy Library book series (LAPS, volume 16)

Abstract

In the law of obligations the parties in a legal relationship have traditionally been defined using abstract and formal role concepts. These concepts have to some extent, as we saw in Chapter IV, been supplemented with function-related concepts such as ‘consumer’ and with ability-oriented concepts such as ‘expert’. The cases within the law of obligations where it has been possible to consider a party’s concrete economic and social needs have until now been viewed as somewhat isolated exceptions.

Keywords

Social Responsibility Legal Consequence Small Enterprise Contractual Relationship General Clause 
These keywords were added by machine and not by the authors. This process is experimental and the keywords may be updated as the learning algorithm improves.

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References

  1. 1.
    Redner 1979 p. 76 f.Google Scholar
  2. 2.
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    In this context reference should be made to the comprehensive international discussion on “Corporate Social Responsibility”: see e.g. Dübeck 1989.Google Scholar
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    Another negative side-effect of a need-oriented tort law is naturally conceivable: if the prospective, economically weak tortfeasor is aware that his own need to avoid liability is given considerable weight in the legal assessment, this may possibly lead to a reduction of the preventive effect of damages. In discussion of tort law, however, opinions have always diverged strongly regarding whether and how far liability in damages has a preventive effect at all. As long as opportunities for need-oriented solutions are relatively limited in cases of deliberate damage and the assumption is not that consideration of the tortfeasor’s needs will normally lead to the liability disappearing entirely, one can obviously disregard the risk that need-orientation would weaken the preventive effects of tort law.Google Scholar
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    See for more detail e.g. Holzscheck - Hörmann - Daviter 1982 p. 282, 324 ff., Adler 1985 p. 16, 21, Trebilcock - Reiter - Laskin 1979 p. 28 ff., Holmila 1973 p. 17 and Holmila-McCafferty 1975 p. 27, 36.Google Scholar
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    In Finland for example, the following are exempt from distraint: the debtor’s and his family’s necessary clothes, bedclothes, beds and indispensible furniture and household utensils, equipment necessary for work, and one month’s provisions where this is deemed indispensible to the debtor. From the debtor’s salary according to the main rule two-thirds shall be exempt from distraint, but always as much as he is considered to need for his own and his family’s support. A greater part of the debtor’s salary is exempt from distraint if his ability to pay is substantially reduced because of illness, unemployment or other special cause (social force majeure). Google Scholar
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    Kâhler 1984 p. 490. Reifner 1980 p. 355 refers to the same problem when he notes that one can use private law to create a social welfare case. See also Trebilcock - Reiter Laskin 1979 p. 74.Google Scholar
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    That adjustment of unfair prices is in fact possible in Finnish law is clear from sec. 36 of the Contract Act. From this, however, it does not yet follow that account could be taken of the debtor’s economic standing in the assessment of fairness.Google Scholar
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    See as an example HD 1986 II 144 above V.8.2.i.Google Scholar
  21. 22.
    Thus for example the case reported in V.8.2.ii.Google Scholar

Copyright information

© Springer Science+Business Media Dordrecht 1992

Authors and Affiliations

  • Thomas Wilhelmsson
    • 1
  1. 1.Department of Private LawUniversity of HelsinkiFinland

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