Summary
Private law uses counterfactual reasoning to assess damages. This study proposes a principled theory, asserting that the standard counterfactual for loss determination is what would have occurred without the wrongful act, with justifiable exceptions.
Area of Science:
- Law
- Legal Theory
- Private Law
Background:
- Counterfactual reasoning is crucial in private law for awarding compensatory damages.
- The specific counterfactual used to determine loss is often unclear and varies by claim.
- Counterfactuals are an undertheorized concept in legal scholarship.
Purpose of the Study:
- To propose a new, principled theory and conceptualization of counterfactuals in private law.
- To clarify the counterfactual used for determining loss in legal claims.
- To establish a consistent framework for counterfactual reasoning in private law.
Main Methods:
- Conceptual analysis of legal principles.
- Development of a theoretical framework for counterfactual reasoning.
- Examination of existing case law and legal doctrines.
Main Results:
- The standard counterfactual for determining loss should be 'what would have happened without the wrong'.
- Identifies and justifies exceptions to this standard counterfactual.
- Proposes a unified theory for understanding counterfactuals in private law.
Conclusions:
- A principled theory of counterfactuals enhances clarity and consistency in private law.
- The 'what would have happened without the wrong' counterfactual provides a robust default.
- Normatively justifiable exceptions allow for flexibility in complex legal cases.
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