In European law, "non-contractual liability arising out of damage caused to another" is one of the three main non-contractual obligations dealt with in the Draft of a Common Frame of Reference. The law of non-contractual liability arising out of damage caused to another â?? in the common law known as tort law or the law of torts, but in most other jurisdictions referred to as the law of delict â?? is the area of law which determines whether (...) one who has suffered a damage, can on that account demand reparation â?? in money or in kind â?? from another with whom there may be no other legal connection than the causation of damage itself. Besides determining the scope and extent of responsibility for dangers of one's own or another's creation, this field of law serves to protect fundamental rights in the private law domain, that is to say horizontally between citizens inter se. Based on pan-European comparative research which annotates the work, this book presents model rules on liability. Explanatory comments and illustrations amplify the policy decisions involved. During the drafting process, comparative material from over 25 different EU jurisdictions has been taken into account. The work therefore is not only a presentation of a future model for European rules to come, but also provides a fairly detailed indication of the present legal situation in the Member States. (shrink)

Although there is an increasing body of opinion that awards of damages for breach of contract should take account of the claimant’s performance interest, there has been little in the way of analysis of what the performance interest is. Commonly the concept is put forward as simply a reformulation or reconceptualization of the expectation interest, itself hitherto regarded as the one true contractual interest. Such thinking is flawed. A closer analysis of contract doctrine shows there to be two distinct (...) contractual interests; in receiving performance, and in being compensated for losses caused by non-performance. Receiving compensatory damages for non-performance is not the same as receiving performance. At present, this important difference is not fully appreciated, resulting in a failure to develop a principled approach to the claims that can be made following a breach of contract. Recognition of this distinction forces us to confront the fundamental question of how committed we are to the notion that contracts entail a right to performance. This article examines the distinction between these two interests, how the performance interest may be given effect by a damages award, and what the consequences of this analysis are for our understanding of the nature of contractual obligation. (shrink)

This article makes a comparative examination of the widening spectrum of cases in which both tort law and contract law are employed, jointly or separately, to impose non-consensual liability on a contracting party. The article focuses on liability imposed on a contracting party either toward another contracting party or toward a third party for failure to perform an obligation that, on the one hand, is predicated on and arises from the contract, but, on the other hand, does not genuinely (...) originate in the consent of the liable party because it is external to her genuine intention. The primary objective of this article is to propose general guidelines for either choosing between tort law and contract law when imposing non-consensual liability on a contracting party or else allowing liability under both headings. These guidelines for the classification of non-consensual liability also bear on the preliminary question of whether to impose non-consensual liability at all and on the delicate interplay between contract and tort in general and particularly when the two lead to conflicting legal outcomes. (shrink)

2007 was arguably the most extraordinary year in recent memory for the development of Private International Law. Reflecting the vitality and fluidity of a subject that is in constant motion, Volume IX of the Yearbook of Private International Law is again a very rich and multi-faceted book. An entire thematic section of this volume is devoted to the "Rome II" Regulation on the law applicable to non-contractual obligations, which was adopted by the EC institutions in July 2007. Being the (...) first EC regulation on pure applicable law issues, this text opens up a new era in the process of creating a European PIL system. It deserved therefore a detailed commentary and analysis of its main provisions by experts from several EU States. Because of the interest that this European text presents for third party States, some distinguished scholars from non-European areas (the US, Japan, Latin America and Australia) were also asked to express their views on this important piece of Community legislation and the possible influence it may have on conflict developments in their respective countries and regions. (shrink)

The article analyses and reconstructs a broad idea of legal responsibility which underlies and normatively links tort law with the law of unjustified enrichment. The article’s central proposition is that responsibility for damage caused and enrichment-responsibility are closely interrelated. Both aspects of obligations are equally an expression of corrective justice, and ultimately serve to protect the civil rights of citizens. It is shown that the idea of civil equality and the principle against unjustified enrichment require citizens to assume responsibility not (...) only for the consequences of their misbehaviour, but also for the consequences of lawful actions that non-reciprocally endanger the rights of others. This can be seen particularly clearly in cases of necessity like Vincent v Lake Erie. Under current law, those cases fall in between the categories of unjustified enrichment and wrongs; in most legal systems, they are therefore regarded as particularly hard cases. Nevertheless, the liability of a person lawfully causing damage in a situation of necessity exemplifies the idea of legal responsibility, and thus helps in better understanding the law of non-contractual obligations. Methodologically, the article combines historical arguments derived from the late scholastic theory of restitution with a comparative analysis of Western legal systems and contemporary private law theory. This approach is designed to overcome the conceptual boundaries of national private laws on both sides of the English Channel; it may help to address difficult legal problems more appropriately. (shrink)

Neste texto, investiga-se a extensão diacrônica da comuni- dade moral no âmbito de teorias contratualistas. Para isso, examinam-se críticas à possibilidade lógica de sustentar obrigações em relação a gerações futuras e se abordam modelos argumentativos contratualistas de justificação dessas obrigações que se baseiam no interesse próprio e na imparcialidade. De acordo com essa pesquisa, a melhor defesa dessas obrigações se pode articular recorrendo a esse último tipo de contratualismo.

This study investigated the business ethics experiences of Australian managers in China, using qualitative methodology to identify themes. Thirty-one Australian managers who had spent on average 8.7 years working in business connected to China participated in in-depth interviews regarding their business ethics experiences in China. Commonly, managers identified issues relating to a broad spectrum which could be labelled "bribery and facilitation". Other repeated themes included requests for visa assistance, employee theft, nepotism and non-adherence to contractual obligations. This study has (...) important implications for helping Australian managers improve the way they approach potential ethical situations in China. Four key coping strategies can be identified from the data: managers spoke of not compromising their own morals, of attempting to understand the motivation of Chinese colleagues, of talking to others and of adhering to company policy. These strategies suggest practical steps may be taken by organisations when training managers for business activities in China. In particular, structuring of mentoring relationships between experienced and less experienced practitioners may be of assistance. Cultural training for managers and clear company policy on contentious issues such as bribery may also be of benefit. The themes identified in the study also have implications for academics researching expatriate business peoples' experiences in China. (shrink)

This article addresses several aspects of interaction between procedural and conflict rule regulation in private international law both of which are subject to unification process under the European Community law. They are interdependent of each other, and use the same or similar terms on many occasions. Problems with interpretation arise in application of these legal regulations. The European Court of Justice addresses them more or less successfully. As demonstrated in this article, the interpretation of procedural rules of regulation may contribute (...) to the clarification of the conflict rules and vice versa. It can be even said that the mutual interaction of conflict rules and procedural rules through interpretation is both unavoidable and desirable. (shrink)

In contract law, common mistake or frustration are grounds for relieving the promisor from the obligation to perform. Conventional economic theory justifies relief by appealing to its effect on the promisee’s incentives, namely, her incentives to act efficiently to prevent the unfavorable occurrence or its associated losses. The Article challenges this justification. While relief may indeed generate efficient incentives under certain conditions, these are not the conditions in which it is in fact granted. Consequently, the cases in which the (...) conventional theory recommends that relief be provided and those in which it is actually awarded, are incompatible. Based upon this premise, the Article develops a new theory of the law of common mistake and frustration, bearing descriptive and prescriptive implications. Under the new theory, the purpose of relief is not to incentivize promisees, but rather to determine the legal consequences of non-contemplated events. Viewed in this light, the Article identifies a new set of efficiency rationales for the rule. Under specified conditions, relief allows contracting parties to (1) refrain from welfare-reducing trade in unquantifiable risk; (2) maintain control over the distribution of contractual gains; and (3) overcome disincentives to form efficient contracts. The Article analyzes the conditions under which these virtues are applicable, and finds that they generally correspond to those in which relief is actually awarded. (shrink)

Relying on the systematic, logical, and analytical methods, national legislation and some internationally accepted guidelines, as well as on the research conducted by the Lithuanian scientists and law practitioners, this article consistently and comprehensively deals with the problems arising in the areas of interpretation and application of tax law. The article examines the relevant tax concepts, studies the tax law system, deals with the relevant issues arising in the field of application of legal regulations on taxation, and provides a particularly (...) detailed analysis of court jurisprudence within the context of the relationship between tax and law. On the basis of the analysis conducted, it was established that the basis for the Lithuanian tax law system consists of the Constitution of the Republic of Lithuania; the Law on Tax Administration; tax laws that lay down specific taxes and of by-laws adopted on their basis; national legal regulations that contain a consideration attribute and set mandatory payments to the State budget; the Law on Customs; ratified international agreements; the European Union legal regulations to the extent they are related to the duties, import excise duty, and value added tax; and the European Union directives in respect of direct and indirect taxes and the extent to which they are related to tax administration. When relationships in public law are directly regulated by the relevant public law regulations, it is not private law regulations, but the corresponding public law regulations that must be applied. In order to determine the need for tax authorities to rely on the regulations of the Civil Code, it is necessary to state the necessity to assess legal relationships from the point of view of private law or to identify a gap in legal regulation of public law due to which the norms of the Civil Code are subsidiary. Prior to establishing the tax base, the tax authority does not have to rebut transactions in civil procedure. The taxpayer’s obligation to fulfil tax liabilities that are properly prescribed by tax laws is not called into question by unlawful acts of other persons which constitute grounds for their civil (non-contractual) liability for the damages caused. The factual circumstances of tax relations established in the court cases heard in criminal and/or administrative procedures, do not need to be proved again – they are relied on in the course of tax inspections or when hearing tax disputes. The principle of equality of taxpayers requires tax administrators to give equal treatment to the facts with respect to all participants regarding the same tax relationship and obliges taxpayers to pay taxes honestly, because non-payment of taxes is a breach of public interest and therefore of this principle. In accordance with the principle of general applicability and equality, each taxpayer has an obligation to pay taxes as prescribed in tax legislation observing the calculation and payment procedures stipulated in the tax legal regulations, whereas the amount payable as established by the tax administrator shall be regarded as well-founded to the extent that it does not exceed the criterion of equality and reasonableness. The principle of clarity of taxation requires the tax administrator to adopt clear and comprehensive decisions with respect to the taxpayer and therefore to ensure their rights and legitimate interests. In the calculation of tax by applying the principle of primacy of content over form, it is necessary to establish that a transaction, an economic deal or indeed any group thereof has been concluded for the purpose of obtaining tax benefits. (shrink)

Traditionally, civil law jurisdictions in Scandinavia and the continent of Europe have not been willing to acknowledge the appropriateness of extending bankruptcy relief to consumer debtors and discharging any part of their debts. The opposition was based on the importance of upholding the sanctity of contractual obligations: pacta sunt servanda. This attitude stood in contrast to the fresh start philosophy of US bankruptcy law, which embraced a more forgiving attitude, focusing on the reintegration of the insolvent debtor into society, (...) substantially free of debt, after he has filed for bankruptcy and surrendered his non-exempt property for distribution among his creditors. The relaxation of credit controls and the rapid increase in the number of insolvent debtors in the late 1980s and early 1990s has forced many continental jurisdictions to reconsider their traditional opposition. They have since adopted debt adjustment plans providing various forms of debt relief to overcommitted debtors but only a substantial number of years after the initial proceedings. The American reaction has gone in the opposite direction. With the adoption of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, the United States has reversed its century old liberal fresh start tradition. The 2005 Act imposes a formidable means test as well as other preconditions to determine whether a debtor has sufficient discretionary income to pay off twenty percent of his or her unsecured debts under a Chapter 13 plan. If the answer is yes, the debtor is denied the right to file a bankruptcy petition under Chapter 7 of the Bankruptcy Code. This paper asks whether these developments on opposite sides of the Atlantic suggest that facts on the ground are more important than dogma and deeply entrenched beliefs. The author’s answer is that while there is certainly a trend towards convergence between continental European and US approaches to consumer insolvency, it is much too soon to speak of a common culture and a common approach. He notes, however, that Commonwealth jurisdictions have long adopted a means test to determine a debtor’s eligibility for discharge from debt and suggests that continental scholars would have done better to study the Commonwealth experience as embodying a suitable compromise than to flirt with the US fresh start philosophy, only to reject it as too alien to the continental moral sense. (shrink)

The ethics of firefighting is a seriously underexplored field. This is unfortunate, since firefighting raises issues of great social importance and has the potential to inform moral theorizing. In the first part of this paper, I explore possible reasons why firefighting ethics has received so little academic attention and argue that it warrants study in its own right. I do so primarily by comparing firefighting ethics to medical ethics, demonstrating their close relationship yet pointing out important differences: firefighting is less (...) professionalized than medicine, the caregiver-patient relationship is not central in firefighting, firefighters need to concern themselves with other values than life and limb, they face greater and qualitatively different risks than medical personnel, and they have to make almost every operative decision under conditions of temporal stress. In the second part of the paper, I argue that some elements from medical ethics may be adapted for use in firefighting ethics. I illustrate this by applying four mid-level principles from mainstream medical ethics to firefighting – the principles of autonomy, non-maleficence, beneficence, and justice. I argue that they are indeed applicable in firefighting ethics, but that they need modification and their relative weight is different. Respect for autonomy is of limited importance in firefighting. Non-maleficence is important, and beneficence is central. The special principle of beneficence for firefighters is best thought of as grounded in firefighters’ contractual obligations rather than in a general principle that one should help someone in peril. As regards the principle of justice, there is a case for applying a utilitarian principle of justice on the operative level and a principle of a decent minimum aid on the policy level. The latter can be brought about by comparatively simple and low-cost means, such as a volunteer fire service and subsidized fire equipment. (shrink)

Contemporary society is in the grip of contractual thinking. Realities are interpreted in contractual terms, and goals are formulated in terms of rational contracts. The leading current conceptions of rationality begin with assumptions that human beings are independent, self-interested or mutually disinterested, individuals; they then typically argue that it is often rational for human beings to enter into contractual relationships with each other.

This article gives an anarchist account of politics as war to theorise an anarchist _Realpolitik_. Mikhail Vereshchagin’s killing in _War and Peace_ provides the springboard to review the claim that sovereign power secures peace and to explore the merit of scapegoating. We elaborate the anarchist account of politics as war by juxtaposing Foucault’s and Proudhon’s interpretations of Hobbes’ sovereign and adopt the term ‘reverse ethics’ to describe the proposal that citizens retain the philosophical right to forcefully disrupt the state’s supposed (...) peace. The anarchist embrace of war conflicts with the common view that anarchism’s alignment of the means and ends of political action commits anarchists to reject violence. To meet this objection, we discuss Frazer and Hutchings’ theorisation of anarchist ambivalence. We argue that reverse ethics complicates tensions between the presumption of non-violence and the critique of state violence. To consider the use of force in liberal democracy, we connect reverse ethics to Hyams’ anarchist defence of upward scapegoating and targeted assassination. Considering applications in contemporary politics, we argue that reverse ethics constructively redirects attention from the need to justify political violence to the demand to hold sovereign power to its contractual obligation. This is anarchist _Realpolitik_. (shrink)

The paper critically discusses the deontological interpretation of Hobbesian contractual obligation which has been advocated by commentators such as Brian Barry, D. D. Raphael and Bernd Ludwig. According to this interpretation, the obligation to comply with contracts and covenants is fundamentally different from the obligation to observe the laws of nature. While the latter is taken to be a prudential obligation that is logically dependent upon the individual aim of self-preservation, the former is viewed as (...) an absolute or unconditional moral obligation that solely follows from the fact that the individual has bound himself to the performance or omission of certain actions. As can be shown, the deontological interpretation suffers from inherent problems and does not provide an appropriate interpretation of the Hobbesian texts. In particular, it can be demonstrated that the attempt to use Hobbes's concept of 'freedom as deliberation' in order to explain how obligations arise from contractual agreements faces serious difficulties. (shrink)

This article analyses that state responsibility in international law is contractual liability, as a state infringes its obligations to another state (states), stemming out of international law. Member State liability in damages to a private party for breach of European Union law is, contrarily, non-contractual liability to a private party. Having analysed the elements of internationally wrongful act, it is stated that the elements of internationally wrongful act can be used to determine the elements of breach of the (...) European Union law. Thus if an international court declares that a state committed an internationally wrongful act, it would be possible to maintain that the elements of breach of the European Union law are met as well. The author of this article notes that it is very important to identify a particular state institution, which has infringed the European Union or international law, as not attributing to the state the acts of the state institution under the European Union or international law, there should be no possibility to apply state liability in damages to a private party for breach of the European Union law or state responsibility in international law – the state can be liable only for acts of its institutions. This article also analyses the cases where application of both Member State’s liability in damages to a private party for breach of the European Union law and state responsibility in international could be possible. In such case a private party can suffer damages if a Member State breaches an international agreement, concluded by the European Union, imposing particular obligations on that Member State. Therefore, it is ascertained that a private party should not have to prove the second condition of liability – sufficient seriousness of the breach1 – if an international court foremost states that a Member State commited an internationally wrongful act – breached its obligation arising out of an international agreement entered into by the European Union. Such an infringement would be considered to be as sufficiently serious per se. (shrink)

As an employee, a sports doctor has obligations to their employer, but also professional and widely accepted obligations of a doctor to the patient . The conflict is evident when sports doctors are asked by an athlete to keep personal health information confidential from the coach and team management, and yet both doctor and athlete have employment contracts specifying that such information shall be shared. Recent research in New Zealand shows that despite the presence of an employment contract, there appears (...) to be a wide range of behaviours among sports doctors when an athlete requests that information about them be kept from team management. Many seem willing to honour requests to keep health information about the athlete confidential, thereby being in breach of the employment contract, while others insist on informing team management against the wishes of the athlete. There are a number of potential solutions to this dilemma from forcing doctors to meet their contractual obligations, to limiting the expectations of the employment contract. This paper suggests that at times it may be appropriate to do both, making the position of the doctor clearer and supporting the ability of this group to resist pressure by coaches and management through having a robust code of ethics. (shrink)

In this article we argue that commercial boycotting is not an uncontested economic right. Rather, the practice of boycotting often requires further moral justification. We argue that this justification should not rely solely on the consequences of boycotting, nor should it rely solely on the complicity of the consumer. We suggest that both justifications are subject to pressing objections. In light of these objections, we outline an alternative non‐consequentialist justification of commercial boycotting that is grounded in the moral values of (...) conscience and personal integrity. We then explore the scope of this justification in the legal realm. We focus on cases where consumers lack freedom of exchange due to their contractual obligations and conclude by defending a qualified legal right to breach contracts on conscientious grounds. (shrink)

The author introduces the notions of crucial argument and crucial evidence in the philosophy of intellectual history (broadly construed, including the history of political thought). He will use these concepts and take sides in an important controversy in Hobbes studies, namely whether Hobbes holds a prudential or a deontological theory of contractual obligation. Though there is textual evidence for both readings, he will argue that there is especially relevant evidence - crucial evidence - for interpreting Hobbes's account in (...) a deontological fashion. (shrink)

This paper argues that throughout his intellectual career, Hobbes remains unsatisfied with his own attempts at proving the invariant advisability of contract-keeping. Not only does he see himself forced to abandon his early idea that contractual obligation is a matter of physical laws. He also develops and retains doubts concerning its theoretical successor, the doctrine that the obligatoriness characteristic of contracts is the interest in self-preservation in alliance with instrumental reason - i.e. prudence. In fact, it is during (...) his work on Leviathan that Hobbes notes the doctrine's main shortcoming, namely the limitation of its dialectical potential to cases in which contract-breakers are publicly identifiable. This essay shows Hobbes's doubts about his Leviathan's treatment of contractual obligation by way of a close reading of its central 15 th chapter and an analysis of some revealing shifts between the English Leviathan and the Latin edition. The paper ends by suggesting that Hobbes's awareness of the flaws at the heart of his political philosophy helps account for some striking changes in his latest writings. (shrink)

Keith Dromm has argued that the makers of historical films have a moral duty to be accurate in their depictions of the past due to the principle that it is wrong to lie. In this essay, I contend that contractarianism provides a more comprehensive basis upon which to ground such an obligation. While Dromm’s treatment takes into consideration key historical facts, such as names and dates, it fails to properly account for the role played by causal interpretation in historical (...) understanding. I argue that his recommended guidelines for filmmakers should be supplemented by an additional one that urges them to respect the conventional scholarly explanation of the circumstances which led to the events that they have chosen to depict. (shrink)

Contract as Promise is a study of the philosophical foundations of contract law in which Professor Fried effectively answers some of the most common assumptions about contract law and strongly proposes a moral basis for it while defending the classical theory of contract. This book provides two purposes regarding the complex legal institution of the contract. The first is the theoretical purpose to demonstrate how contract law can be traced to and is determined by a small number of basic moral (...) principles. At the theory level the author shows that contract law does have an underlying, and unifying structure. The second is a pedagogic purpose to provide for students the underlying structure of contract law. At this level of doctrinal exposition the author shows that structure can be referred to moral principles. Together the two purposes support each other in an effective and comprehensive study of contract law. This second edition retains the original text, and includes a new Preface. It also includes a substantial new essay entitled Contract as Promise in the Light of Subsequent Scholarship--Especially Law and Economics which serves as a retrospective of the work accomplished in the last thirty years, while responding to present and future work in the field. (shrink)

When should binding debt contracts not be repaid? This article argues that whenever the repayment of sovereign debt threatens the human rights of the citizenry, this provides a weighty normative reason to prioritize the fulfilment of the latter over the former. Since there are specific, non-coincidental reasons to fear that a high indebtedness of states may result in the undermining of the socio-economic and the collective human rights of a state’s citizenry, the more specific thesis defended in this article is (...) the following: whenever debt repayment undermines the socio-economic and collective human rights of the state´s citizenry, states have a normatively weighty reason to prioritize the fulfilment of the citizen’s human rights over meeting their contractual debt payment obligations vis-à-vis their creditors. (shrink)

Will the new Rome I Regulation meet its goals - to improve the predictability of the outcome of litigation? - to bring certainty as to the law applicable and the free movement of judgments? - to designate the same national law irrespective of the country of the court in which an action is brought? The most important features of this instrument were outlined and discussed by distinguished legal experts from all over Europe and beyond at the conference "The Rome I (...) Regulation", held in Verona on March 2009. This first book in English on the Rome I Regulation contains the papers submitted to that conference. (shrink)

This article considers Cohen’s claim that the economic structure or base can be conceived independently of the superstructure by adressing his attempt to identify “a rechtsfrei (moralitätsfrei, etc.) economic structure to explain law (morals, etc.)”. It examines his programme of presenting relations of production as a set of (non-normative) powers and constraints that ‘match’ the rights and obligations of property relations. It is argued that, first, Cohen does not carry through this programme rigorously but, second, he could not do so, (...) since it cannot be carried out at all. Three arguments are advanced, the first two against the possibility of a determinate ‘objective’ account of such powers and constraints, the third against the possibility of abstracting norms (constitutive and regulative, formal and informal) from contractual relationships: it is argued that one cannot identify the powers and constraints embodied in norm-governed economic relationships independently of the norms which govern them. Alternative interpretations are considered of Cohen’s programme that might escape these objections, but these are rejected as untrue to his purpose, and in any case ineffective. It is concluded that Cohen fails to distinguish base from superstructure in the manner required. (shrink)

Fiduciary law is in a state of flux. We know that the core obligation of a fiduciary is an obligation of loyalty, but we are less sure what ‘fiduciary loyalty’ encompasses. We know a fiduciary has duties not to profit or put himself in positions of conflict, but how these duties interact with other non-fiduciary duties (whether tortious or contractual or otherwise) is more difficult to discern. Against this background, Conaglen has made a recent contribution to our (...) understanding of the fiduciary doctrine. He suggests that fiduciary loyalty offers a subsidiary and prophylactic form of protection for non-fiduciary duties. This article considers his analysis, and argues that it is not supported by case law and creates a number of inexplicable implications for the fiduciary doctrine. In view of these difficulties, Conaglen's analysis should be rejected. (shrink)

The contractual liability exposure of members of unincorporated non-profit undertakings has not been deeply investigated by the courts. The basic principle is clear enough - contractual liability depends on whether or not a member participates in managing the affairs of the association. This is framed by the judges as a question of agency. What has remained unstated is the rationale for this approach. The author examines the English, Canadian, and American authorities in an effort to clarify the operation (...) of the agency analysis and to justify the liability assignments it produces. (shrink)

In a common example of the non-identity problem, a person deliberately conceives a child who she knows will have incurable blindness but a life well worth living. Although Wilma’s decision seems wrong, it is difficult to say why. This paper develops and defends a version of the “indirect strategy” for solving the NIP. This strategy rests on the idea that it is wrong to deliberately make it impossible to fulfill an obligation; consequently, it is wrong for Wilma to create (...) Pebbles because doing so makes it impossible to fulfill her obligation to protect her child from harms like blindness. A challenge for the indirect strategy is the well-known “rights waiver problem”: Since Pebbles’s very existence depends on Wilma’s having made herself unable to fulfill an obligation to Pebbles, Pebbles is likely to waive that obligation. I address this problem by recasting the indirect strategy in terms of a non-grievance evil. I argue that deliberately making it impossible to fulfill a moral obligation manifests a defective attitude toward morality—an attitude which sees moral obligations as things to be dodged whenever they are inconvenient. Next, I argue that acting on this attitude is a wrong-making feature that is independent of any wrong that might be done to Pebbles. I conclude that Wilma’s decision remains wrong even if Pebbles waives any objection to it. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Greek FriendshipDavid KonstanIn this paper I examine the nomenclature and conception of friendship among the ancient Greeks. More specifically, I challenge the current consensus that the classical Greek notion of friendship was wider or more inclusive than the modern. My focus will be on the significance of the terms philos (as noun) and philia, which do not, as is commonly assumed, denote the same range of relations. I shall (...) argue that philos in the classical period denotes something very like the modern sense of "friend," while philia refers to affectionate sentiments (not objective obligations) characteristic of a wide range of relationships, not excluding friendship proper. I examine evidence drawn primarily from Aristotle, Xenophon and the Greek orators in order to exhibit the uses of the nouns philos and philia, and look also at Sophocles' Antigone, since a number of recent interpretations of this play presuppose that kin are philoi and that philia represents the objective bond among them.In his recent book on Athenian finance, Paul Millett writes: "It is true that from the viewpoint of comparative sociology, to say nothing of our own experience, the all-inclusive quality of Greek friendship is anomalous."1 Millett cites the article on "Friendship" by Odd Ramsøy for the generalization that "most other important social relationships exclude friendship," which "tends to be incompatible with such relationships as those of mother and child, lovers, and employer and employee."2 Millett goes on to observe that Greek usage, as illustrated for example by Aristotle, admits of the term philos or "friend" in respect to "parents, brothers, benefactors, fellow-tribesmen and fellow-citizens," as well as to "husbands and wives, fellow-voyagers, comrades-in-arms, guest-friends, and cousins," and he adds that "perhaps the clearest illustration comes from the Memorabilia of Xenophon, plotting the extension of philia both inside and outside the family circle." [End Page 71]Millett expresses with exemplary clarity and a wealth of citations a point of view shared by virtually every scholar writing these days on Greek friendship. For example, Mary Whitlock Blundell, in her study of Sophoclean ethics, classifies Greek conceptions of friendship under three main heads or circles: the family, fellow-citizens, and "the third main group of philoi" that "approximates most closely to modern conceptions of a friend."3 Barry Strauss, in his history of fourth-century Athens, writes: "Friendship was of fundamental importance in Athenian society. Second only to parent-child and kinship ties in the intensity of its obligations, friendship is central to the thought of many ancient Greek writers."4 This seems to promise a distinction between kinship and friendship, but in the next sentence Strauss continues: "Philia, as the Greeks called it, is much broader in its meaning than the English 'friendship,'" and he goes on to quote with approval N. R. E. Fisher, who asserts: "Linguistically, the most general word for what belongs to a person, in his group or on his side, is philos (noun philia), which we usually translate 'friend,' but which, when applied to persons, systematically spans both kin and non-kin, those with whom one has links of mutual aid and benevolence."5 Sally Humphreys states the matter succinctly in a footnote:" Philos can refer both to kin and to friends."6 The philosophers too are in agreement on this point. Thus, Michael Pakaluk, in the introduction to a collection of philosophical essays on friendship, observes of Aristotle's treatise: "Religious societies, familial bonds, affinities among travellers, civility among citizens, arrangements of hospitality, and tacit contractual agreements-all of these are woven into his account of friendship."7The Greeks, then, are said not to have discriminated linguistically between a wide range of associations that we, and most societies, regard as categorically distinct. Friends are assimilated to relatives, fellow citizens, and just about anyone else with whom one shares some common experience or interest. This view, however, is inexact and misleading as stated. I shall argue that in Greek usage of the classical period and later, [End Page 72] just as in English today, kin and fellow citizens were not normally spoken of as friends or philoi, and that the categories were in fact distinct and... (shrink)

I explore various ways of integrating the framework for predeterminism, agency, and ability in[P.McNamara, Nordic J. Philos. Logic 5 (2)(2000) 135] with a framework for obligations. However,the agential obligation operator explored here is defined in terms of a non-agential yet personal obligation operator and a non-deontic (and non-normal) agency operator. This is contrary to the main current trend, which assumes statements of personal obligation always take agential complements. Instead, I take the basic form to be an agent’s (...) being obligated to be such that p. I sketch some logics for agential obligation based on personal obligation and agency, first in a fairly familiar context that rules out conflicting personal obligations (and derivatively, conflicting agential obligations), and then in contexts that do allow for conflicts (of both sorts). (shrink)

Obligations to reduce one’s green house gas emissions appear to be difficult to justify prior to large-scale collective action because an individual’s emissions have virtually no impact on the environmental problem. However, I show that individuals’ emissions choices raise the question of whether or not they can be justified as fair use of what remains of a safe global emissions budget. This is true both before and after major mitigation efforts are in place. Nevertheless, it remains difficult to establish an (...) obligation to reduce personal emissions because it appears unlikely that governments will in fact maintain safe emissions budgets. The result, I claim, is that under current conditions we lack outcome, fairness, promotional, virtue or duty based grounds for seeing personal emissions reductions as morally obligatory. (shrink)

This essay, to appear in Contract, Status, and Fiduciary Law (Miller & Gold, 2016), explores three ways fiduciary obligations might be like contractual ones: in the methods lawmakers use or should use to determine the content of the obligation; in the private voluntary acts that generate the obligation; and in the fact that the obligation is a default that parties have the power to alter. The thesis is that to the extent that these similarities exist, they (...) are not especially revealing. Theorists who emphasize the similarities commonly treat contract law as a private power-conferring rule, then analogize the law of fiduciary obligations to it. In fact, the law of contract is more complex and serves a broader range of purposes than just giving private parties the ability to undertake legal obligations when they choose. Contract obligations are sometimes imposed for reasons other than party choice, and contract defaults and altering rules can be designed to serve other social purposes. A more nuanced understanding of the functions and design of contract law suggests that structural similarities between fiduciary obligations and contractual ones tell us less about the fiduciary obligations than we might have hoped. The explanation of why that is so, however, reveals important features both of contract law and of the law of fiduciary obligations. (shrink)

In this paper, I will argue that it is a moral obligation for companies, firstly, to accept their moral responsibility with respect to non-discrimination, and secondly, to address the issue with a full-fledged programme, including but not limited to the countering of microsocial discrimination processes through specific policies. On the basis of a broad sketch of how some discrimination mechanisms are actually influencing decisions, that is, causing intended as well as unintended bias in Human Resources Management (HRM), I will (...) argue that the well known tools of legislation and ethical codes are necessary although insufficient to cope with the problem. However, based on empirical evidence, we know which set of measures is likely to diminish discrimination. Taking non-discrimination seriously implies complex and longitudinal policies which include assigning responsibility for a non-discrimination policy within the firm, making managers conscious of implicit stereotypes and helping them to cope with prejudices that no one can totally overcome. Insofar as corporate responsibility with respect to non-discrimination is accepted and strategies that are not prohibitively expensive are known, companies are bound to implement them. Not implementing the best set of measures may be considered at least as a moral shortcoming or, depending on the size of the company, mere lip service to the non-discrimination principle. Although the paper refers to empirical material of diverse backgrounds, its intent is clearly normative. It wishes to spell out what companies ought to do if they are committed to responsible behaviour. The discussion of effective remedies against discrimination is based on a case study of a French company. The retailer Auchan was recently surprised to learn that it was discriminating against ethnic minorities despite strong ethical standards, an ethics committee and ethical leadership. The company dropped its naïve beliefs and set up an ambitious policy cope with the issue. The case illustrates what recent empirical research has revealed about the effectiveness of diversity policies: establishing responsibility for diversity results, firm ethical commitment and support from top management make diversity programs effective. (shrink)

Developments in contract law over the past century have led to the proliferation of interpretive theories according to which contract law is no longer a sui generisi legal branch. It is widely accepted that if there is a sui generis contractual obligation, it must somehow be based on the wills of the parties. But a new orthodoxy in contract theory claims that the role of the will of the parties in contract law has been progressively shrinking due to (...) judicial doctrines within the law of contract and also to general statutory provisions. It is no longer apparent that there is any interesting sense in which contractual liability is based on the will of the parties. Hence, so it is claimed, contract law has lost its sui generis nature. The article challenges this new orthodoxy. But rather than reverting to the old orthodoxy—the will theory of contracts (or its contemporary rendition, contract as promise)—it argues that we should resist being forced to choose between them. The article argues that the purpose of contractual liability is to support the practice of voluntary obligations. This view preserves an important connection between contractual liability and voluntary undertakings and meets the objections that beset the will theory. (shrink)

This article challenges the generally accepted dogma that reliance is an essential ingredient in contractual formation. We argue that this view has resulted from an erroneous interpretation of the relevant case law, failure to cite contrary authority, and the elevation of often oblique judicial references to the need for reliance to the status of fundamental contractual principle. Contractual theory and clear policy reasons support our position that in English law a contractual obligation subsists when a (...) person, knowing of a promise, performs the stipulated act (or gives the promise) requested by the promisor, even though that person has not relied on the promise. (shrink)

Most academic papers on ethics in pandemics concentrate on the duties of healthcare professionals. This paper will consider non-professional healthcare workers: do they have a moral obligation to work during an influenza pandemic? If so, is this an obligation that outweighs others they might have, e.g., as parents, and should such an obligation be backed up by the coercive power of law? This paper considers whether non-professional healthcare workers—porters, domestic service workers, catering staff, clerks, IT support workers, (...) etc.—have an obligation to work during an influenza pandemic. It uses data collected as part of a study looking at the attitudes of healthcare workers to working during a pandemic to suggest the philosophical arguments explored. These include: being in a position to do good, the ethics of work, competing obligations to family members and in particular to children and the obligations of citizens in a state of national emergency. We also look at whether compulsory measures are justified to support a national health service during a health emergency. We conclude that even if they are, compulsion should not be restricted to non-professionals who happen to be working in the health service at the time. Rather, compulsion involving a larger pool of people with the relevant skills and abilities is more equitable. (shrink)

Many claim that a plausible moral theory would have to include a principle of beneficence, a principle telling us to produce goods that are both welfarist and agent‐neutral. But when we think carefully about the necessary connection between moral obligations and reasons for action, we see that agents have two reasons for action, and two moral obligations: they must not interfere with any agent's exercise of his rational capacities and they must do what they can to make sure that agents (...) have rational capacities to exercise. According to this distinctively deontological view of morality, though we are obliged to produce goods, the goods in question are non‐welfarist and agent‐relative. The value of welfare thus turns out to be, at best, instrumental. (shrink)

When Derek Parfit in Reasons and Persons, examined whether the Non-Identity Problem could be solved with the Impersonal Total Principle, he assumed perfect equality in the future population outcomes under his consideration. His thinking was that this assumption could not distort his reasoning, but would make it more simple and clear. He then reasoned that the best future population outcome, according to the Impersonal Total Principle, would be an enormous population, whose members have lives only barely worth living, as a (...) slight lowering in quality of life, according to the principle, can always be more than compensated for by an increase in the number of future people. He found this result impossible to believe and dubbed it the Repugnant Conclusion, concluding that his attempts had ended in failures and that the Non-Identity Problem continues to undermine our beliefs of our obligations to the future. The purpose of this paper is to examine the implications of the Impersonal Total Principle in real-world circumstances where the inevitability of inequality is taken into account. What, if anything, will this imply regarding the Repugnant Conclusion, the indirect version of the Non-Identity Problem and our abilities to ground our moral responsibilities to posterity in an ethical theory? (shrink)