著者

齋藤 航

出版者

中央ロー・ジャーナル編集委員会

雑誌

中央ロー・ジャーナル (ISSN:13496239)

巻号頁・発行日

vol.16, no.1, pp.71-98, 2019-06-30

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Some cases of comparative negligence in contract law have found fault by the injured party in breaching a duty contemplated by the agreement. Other cases, however, have gone beyond that. They have found the injured party at fault because of unreasonable actions, despite the absence of a clear agreement.In contractual duty cases, the rationale of comparative negligence is based on the expression of the agreement of both parties. However, that analysis falters in non-contractual duty cases. Why should an injured party be required to behave reasonably in the absence of a contractual obligation? The presence of an agreement or contract is not enough to explain all cases of comparative negligence.

著者

齋藤 航

出版者

中央ロー・ジャーナル編集委員会

雑誌

中央ロー・ジャーナル (ISSN:13496239)

巻号頁・発行日

vol.15, no.4, pp.43-67, 2019-03

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The justification of "comparative negligence" has primarily been discussed in tort cases. The most popular explanation is "fairness" to both parties. Courts have adopted this approach and have considered the circumstances of victims that affected the damage caused by other parties. Counterarguments have been made, however, that "fairness" is too ambiguous to serve as a justification . In considering comparative negligence in contract cases, the behavior of parties can be thought to be regulated by their agreement . In other words, fault should be found in accordance with their contract. This opinion affected the 2017 amendment of the Civil Code.