Parties may submit non-contractual obligations to the law of their choice. That is, they may usually choose the law which it to apply. This also applies to non-contractual obligations,  other than those arising from unfair competition or the  infringement of intellectual property rights.

Conditions are applied in order to protect  consumers and weaker parties. Where the agreement is entered after the damage, these protections do not apply as the weaker party is less likely to  agree an adverse choice.

A weaker party may be bound by standard terms and conditions of the stronger party providing for an adverse and inconvenient choice of law. Therefore, the prior agreement must be freely negotiated.  The choice must be expressed or demonstrated with reasonable certainty by the circumstances of the case.  The parties\’ choice is not to prejudice third-parties.

There are number of limitations on the parties\’ right to choose the governing law.  Where all elements relevant to the situation at the time of the event giving rise to the claim for damage are located in a state other than a state whose law has been chosen, the choice of the party shall not prejudice the application or provisions of the laws of that sate which cannot be derogated by agreement.  This refers to mandatory rules of law, usually consumer protection rules which cannot be contracted “out of”.

Where all elements relevant to the situation at the time of the event giving rise to the damage occurs are located in one or more states, the parties\’ choice of law applicable other than a member states shall not prejudice the application provisions of EU law  which cannot be derogated from / contracted out.  This would apply to EU wide mandatory rules such as consumer protection rules which have been made in the last 40 years.

The Regulation sets out guidance on the scope of the law applicable under the above choice of law rule.  This applies to the rules  for  tort/equitable and restitutionary remedies.

The rules apply to the basis and  extent of liability including the determination of the parties who may be held liable for acts performed by them, (vicarious  liability). regulation.  It also covers questions of capacity. It covers whether the matter dependents on negligence, strict fault, the degree of fault and whether any statutory maxima are laid down.

It applies to grounds for any exemption from liability, limitation of liability and division of liability.  It applies to the existence and the nature and assessment of damages or the remedy claim.

It applies to the assessment of damages.  This is so, notwithstanding that in the latter case,  the provisions shall been traditionally regarded as procedural and not substantive.  Therefore they are not dependent on the law of the place where the case is heard.

It applies to  the remedy. It applies to measurement of damages of compensation.  It applies to the question whether a right to claim damages or remedy may be transferred including by inheritance.

It determines the persons entitled to compensation for damage sustained personally.  It determines vicarious liability, i.e., liability for the acts of the other.  It determines the manner in which an obligation may be extinguished, including prescription and limitation including time limits /statute of limitations.  It overs release and settlement. These latter rules were  traditionally regarded as procedural but is categorised as substantive rules in this context.  This is the same approach as in the case with contracts.

There are some modifications and limitations on the applicable laws above.  They are based on public policy considerations.

Nothing in the Regulation is to restrict the application of provisions of the law of the forum that are mandatory irrespective of the law otherwise applicable to a non-contractual obligation.  These are mandatory rules of the jurisdiction of the court hearing the case.  The concept is similar to that applicable in relation to contract law.

An  application of law provided under the regulation may be refused only if its application would be manifestly incompatible with the public policy of the forum.  These are fundamental matters of law which cannot be derogated from by agreement.

This may apply for example when the foreign law defeats basic human rights protection, consumer protection, employee protection rules in the former state.  Certain matters allowed under laws of other jurisdictions may be incompatible with the values of a western democracy.

In assessing conduct of a person who is sought to be made liable, account must be taken as a matter of a fact and insofar as appropriate of the rules on  safety and conduct which were in force at the place and time where and when the event giving rise to the liability occurred.


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Draft Articles; The articles on this website are in draft form and are subject to further review for typographical errors and, in some cases, updating and correction. It is intended to include references to the sources of materials and acknowledgements in the final version. The content of articles with [EU] in the title and some of the articles in the section on Agriculture are a reproduction of or are based on European or Irish public sector information.

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