Vicarious Liability Deconfines Private Law
Common law and civil law jurists seek to make clear what private law, and the law of extracontractual liability in particular, is confined to performing and doing. Famously Oliver Wendall Holmes, in The Common Law (1881) had stated that “The general principle of our law is that loss from accident must lie where it falls, and this principle is not affected by the fact that a human being is the instrument of misfortune.” In this way he confined the very possibility of compensation through the notion that as a general matter it should not arise. Civilians confine the operation of the private law somewhat differently by viewing obligations as generally contractual – operating by the consent of those bound by them – and only exceptionally extending extra-contractually. But one way or the other, vicarious liability allows us to observe the private law deconfining its conception of fault in order to take account of the risk that moral persons create. In particular, the Supreme Court of Canada’s appeal to “public policy” in order to do so provides a point of entry into the deconfinement of private law.
About
Richard Janda is Associate Professor at the Faculty of Law, McGill University. He teaches extracontractual obligations, business associations, administrative process and environmental law. A former clerk to Justices Le Dain and Cory of the Supreme Court of Canada, he was also Director of the Center for the Study of Regulated Industries at McGill University. He is currently leading the Myko project.