Tuesday, October 31, 2023
Ben Shmueli has posted to SSRN Relational Torts: Tort Litigation in Cases of Close Relations. The abstract provides:
To what extent do personal relationships, such as between family members, neighbors, or trusted business partners matter in ascertaining how to address tort claims? This Article brings policy considerations into present rationales for a new and comprehensive doctrine of relational torts and lays the foundations for practical application of this doctrine.
This Article discusses several main issues. The first is whether it is appropriate to treat torts involving those within a close relationship differently from torts between strangers? The Article posits that in such close relationships, a true restoration of the relationship requires emotional remedies, such as an apology and expression of remorse. This may challenge the traditional view that the main purpose of tort law is to restore the status quo ante, typically by means of monetary compensation. The proposal shifts the focus toward appeasement and rehabilitation, aims that have been considered secondary (compared to corrective justice or deterrence) and considers both efficiency and the public interest in preserving close personal relationships as a value and an asset. The second issue is how to adapt tort law to address tort disputes within close relationships. For example, will it be sufficient simply to tweak existing tort law, or will it be necessary to create entirely new law?
The Article offers suggestions how the remedial implications of relational torts should concentrate on restoration of relationships and not necessarily backwards-looking reparation or compensation for harm. Part of the solution should employ emotional remedies in lieu of some part of monetary damages in appropriate cases, examining how to make it compatible also with the will to be efficient and prevent over-deterrence. Finally, the Article discusses the types of close relationships that should be covered under any such new tort law. Speaking both positively and normatively, some aspects of the desirable model are found in today’s legislation and case law in various countries. However, there is no systematic and coherent theory, or at least any organized arrangements, for the doctrine. The analysis draws on an extensive-but-cautious comparison with relational contracts doctrine.