Artigot i Golobardes, Mireia; Gómez Pomar, Fernando --- "Contributory and Comparative Negligence in the Law and Economics Literature" [2009] ELECD 288; in Faure, Michael (ed), "Tort Law and Economics" (Edward Elgar Publishing, 2009)

Book Title: Tort Law and Economics

Editor(s): Faure, Michael

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781847206596

Section: Chapter 2

Section Title: Contributory and Comparative Negligence in the Law and Economics Literature

Author(s): Artigot i Golobardes, Mireia; Gómez Pomar, Fernando

Number of pages: 35

Extract:

2 Contributory and comparative negligence
in the law and economics literature
Mireia Artigot i Golobardes and
Fernando Gómez Pomar*


2.1 Introduction
This chapter reviews the literature on two different and important rules
within the universe of negligence law, namely contributory and compara-
tive negligence, and discusses their efficiency properties in inducing care
and minimizing the costs of accidents.
The chapter is structured as follows. The first part of the chapter intro-
duces the differences between contributory and comparative negligence,
and the judicial evolution of the application of those rules in the United
States and Europe.
The second part reviews the law and economics literature on contribu-
tory and comparative negligence. This literature has gone through four
major phases. In the first phase, contributory negligence was considered
the efficient rule because it was believed to create efficient incentives for
parties to adopt efficient care, mainly in a setting in which a least cost
avoider was assumed to exist. In the second phase, it was shown that under
perfect information both rules were equivalent from an efficiency perspec-
tive. However, once some of the assumptions were relaxed, the equivalence
between both rules did not hold. Hence, in this third phase, the discussion
has focused on the assumptions and the performance of both rules that
seem to favor comparative negligence.
Today, though, discussion on the relative efficiency properties is more
parsimonious in terms of a global advantage, and skepticism prevails
about deciding which rule is preferred.
This chapter navigates the different ...