Abstract
The Law of Obligations Act (LOA)3, which is the main law concerning tort liability, was not amended in 2006. The only Act which was changed in 2006 was the State Liability Act (SLA), which regulates the liability of the state when exercising its powers. In case of damage in private relationships, LOA will be applied, even though it may have been caused by the state (SLA § 1 par. 2). After many years of constant changes in the legal system, the time has come to develop law through court practice and not by changes in legal acts. Changes which were made in the State Liability Act were caused partly as a result of the urgent need to regulate some unsolved questions in law concerning state liability in cases were the European Court of Human Rights had satisfied persons’ individual claims.
In Estonian: Riigivastutuse seadus. Hereinafter referred as SLA. In force from 1 January 2002. Available in English: http://www.legaltext.ee. All the most important Estonian legislative Acts (but not always updated) are available in English: http://www.legaltext.ee.
State Gazette, hereinafter referred as RT.
Law of Obligations Act (LOA) of 26 September 2001, (2001) RT I, 81, 487; amended several times, last amendments are (2005) RT I, 39, 308; 61, 473.
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P. Varul/ I. Kull/ V. KÕve/ M. Käerdi, Law of Obligations Act I. Commented Edition (VÕlaÕigusseadus I. Kommenteeritud väljaanne) (Juura Õigusteabe AS, Tallinn 2006) 725 pp. One of the most important publications in 2006 was the commentaries of the 40 general part of the Law of Obligations Act. The Law of Obligations Act (in force from 1 July 2002) deals with the main rules of compensation of damage whose regulatory functions extend to all cases of compensation of damage (contractual and non-contractual liability). Commentaries include only the general part of the Law of Obligations Act (§§ 1–207) and the next parts (special part I and II) will be published in 2007–2008. The general rules concerning compensation for damage are regulated in the general part of LOA (§§ 127–140), such as the definition of fault (§ 104); the question of contributory negligence (§ 139); the manner of compensation for damage (§ 136); limits on compensation for damage (§ 140); compensation for non-pecuniary damage (§ 134) and rules on pre-contractual liability (§§14 and 15). There are some other rules in the general part of Law of Obligations Act which are important for delictual liability such as multiple tortfeasors (§§ 63–75) and exemption clauses (§§ 42 par. 3 and 106). The structure and system of the presentation of the material allows the reader to follow the main purpose of the regulation and content of the regulation not only from the point of view of the Estonian legal system but also gives information about the sources of the rule, developments in other European countries and how this concept was regulated during the socialist legal regime. Comments consist of many examples from other legal systems, a comparative analysis with the European model laws and proposals for application of the rule. In a way these commentaries are the only complete analysis of the theoretical standpoints of the Law of Obligations Act after the adaptation of the Act in 2002 which was based on all the important Supreme Court rulings until 2002 in the field of the law of obligations. These commentaries will considerably influence Estonian court practice in civil law matters in the future.
J. Lake, Meaning of Fault with Regard to Liability for Damage Caused by the Unlawful Action of Another Person, Juridica International 2006, 136–145 J. Lahe devotes his article to the concept of fault in cases of liability for another. The main question is whether, in situations where society considers it just and necessary to make a person liable for the damage caused by some other person, the fault of the person who caused the damage or the fault of the person who is liable for damage or the fault of both persons is the precondition for the liability. In case of liability for another person, there are primarily four liability situations: liability for the persons who are not capable of being held liable because of their age (minors) or because of disability and under-age persons who are capable of being held liable (14-18) and liability of the user of services for damage caused by the provider of services to third persons. The author comes to the conclusion that in case of liability of parents for the delict of their under-age children, which does not depend on the fault of the parents, the rules of the European Civil Code (PEL) shall be applicable to reach equitable results6. PEL provides that a person is not accountable for the causation of damage if that person shows that there was no defective supervision of the person causing the damage (objective negligence). The same principle should also apply in cases of no-fault liability of those supervising persons who do not have full capacity. The author considers that the solution adapted 6 Non-Contractual Liability Arising out of Damage Caused to Another. PEL. Liab. Dam. Art. 3: 104 par. 3. Available at: http://www.sgecc.net/index.php?subsite=subsite_4. in the Estonian Law of Obligations providing that in case of liability of the parents for the damage caused by their children who are capable of being held liable, the precondition of liability is fault of the parents (LOA § 1053 par. 2). J. Lahe offers the idea that in cases of the liability of the user of services, the solution shall be similar — the precondition of the liability of the user shall be the liability of the user of services. Even if the questions of liability for other persons have been under discussion among Estonian scholars and some articles have been published7, the comparative method used as well as the approaches and solutions offered by the author in this article are new.
E. Andresen, State Liability Without the Liability of State. Constitutional Problems Related to Individual Professional Liability of Estonian Notaries, Bailiffs and Sworn Translators, Juridica International 2006, 146–157 E. Andresen mainly deals with the problems of state liability, in this article with the liability of notaries, bailiffs and sworn translators. Notaries, bailiffs and sworn translators are independent public authorities who are individually liable for any damage occurring due to their fault when performing their official duties. Just like public servants, notaries, bailiffs and sworn translators perform public law functions, but the state is not liable for the damage caused by them. E. Andresen analyzes under what conditions the state may transfer its liability to the liability of natural persons and whether such a transfer is grounded in case of the professions listed above. The problem is that compulsory insurance does not cover the liability of notaries and bailiffs, but a natural person is often not able to perform the obligation to compensate for damage solely with his or her assets. Sworn translators have no compensation system for cases of personal liability for damage caused by non-performance of their obligations. In a state based on the rule of law, an injured person cannot be satisfied by knowing that his or her right to compensation has proven valid only on paper. The right to compensation for damage is applicable in Estonia as a fundamental right and such a right must be secured by all public authorities. The peculiarities of an administrative body should not affect the rights of the injured person. The author introduces the idea of replacing the personal liability system of officials with state liability without the need to change the whole system of the professions of notaries, bailiffs and sworn translators.
K. Tamme, Delictual Liability of a Member of a Management Body of a Company in the Case of Abuse Associated with the Company (äriühingu juhtorgani liikme deliktiline vastutus äriühinguga seotud kuritarvituste korral) Juridica 6, 2006, 396–404 K. Tamme has written an article about one of the most urgent problems in Estonian liability law which is the liability of the management body of a company. 7 T. Tampuu, DeliktiÕiguslik vastutus teise isiku tekitatud kahju eest, Juridica 7, 2003, 464–474. Despite the court practice and scholarly writings, the main concepts of liability of members of management bodies of companies are not clearly defined and decided yet. The author of the article starts with the analysis of the preconditions of the liability of managers, concentrating on the problems of protected rights. It is not uncommon to hear Estonian lawyers express the mistaken opinion that the regulation, proceeding from the Commercial Code, on the liability of a member of the management board is somehow outside the basis for other civil law liabilities. K. Tamme analyses in detail the problems of liability of managers who use their position for purposes not connected with the economic activities and aims of the company. The author expresses the opinion that, in case of acting in pursuit of purposes other than economic goals, the manager shall be liable personally for damage caused by unlawful activities. The position of the regulation of the liability of a member of a management board in the liability system of general civil law is also a matter for debate. At the beginning of the article, there is a brief analysis of the position of the liability of a member of a management board in the civil law liability system, in order to set the limits of the internal and external liabilities of a company, since the type of liability to be applied also depends on the nature of the violated obligation. In the main body of the article, there is an analysis primarily of the prerequisites for the delictual liability of members of a management board that could possibly be implemented in Estonia in case of abuses associated with companies, and where a member of the management board is personally liable to the creditor of the company for the implementation. The author covers only briefly the topic of adopting behaviour that is important from the standpoint of the liability of a member of the management body. In case of intentional cause of damage and attempts to escape from liability, it is reasonable to allow the use of all kinds of remedies and claims against the tortfeasor and especially in case of damage which is not connected with the economic activity of the company. This article is a very important source for both judges and practitioners in order to gain a broader understanding of the legal nature of liability of managers and its main principles.
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Lake, J., Kull, I. (2008). Estonia. In: Koziol, H., Steininger, B.C. (eds) European Tort Law 2006. Tort and Insurance Law, vol 2006. Springer, Vienna. https://doi.org/10.1007/978-3-211-77572-1_11
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