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miércoles, 29 de mayo de 2013

La doctrina del daño puramente económico en dos párrafos

William Bishop argued that the rule denies liability for pure economic loss because in many cases there is not a social cost. In the case of a physical loss such as lost lives or damaged property, the social cost is apparent, but in economic loss cases there is often a transfer payment—that is, a private cost to one is an equal private benefit to another. By imposing liability, the law may over-deter an activity that is otherwise efficiently deterred for the purpose of mitigating social cost. This theory is important and has an appealing elegance. A typical fact-pattern illustrating the concept is seen in 532 Madison Avenue Gourmet Foods, Inc. v. Finlandia Center, Inc.
A building collapse closed a Manhattan street. The plaintiff delicatessen did not incur a physical loss but did suffer lost profit. It sued the negligent parties who caused the building collapse, but the court held that they did not owe a duty to the plaintiff under the doctrine of pure economic loss. The economic harm was not a social cost. Since there is a deli in virtually every city block in Manhattan, the plaintiff’s lost profit was offset by gains of other stores. Bishop’s theory works well to explain the denial of recovery… Ultimately, Bishop’s theory depends on the hypothesis that “financial losses are only poorly correlated with social cost,” thus justifying a blanket rule of no duty.
Rhee, Robert J., The Tort Foundation of Duty of Care and Business Judgment (2013). Notre Dame Law Review, Vol. 88, 2013, p. 1139+; U of Maryland Legal Studies Research Paper No. 2013-27. Available at SSRN:
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