Legal status of animals in tort law

[B. O. Arsenijević]

484 str.

Biografija autora: str. 481. Bibliografija: str. 442-480.

Civil Law; Law of Torts and Contracts.

Animals may be involved in a harmful event in two ways: as part of a causative chain link (where damage is caused by the animal) or as injured property (where damage is caused to the animal). Close consideration of these two forms of animal participation provides a comprehensive understanding of the key aspects of animal status in tort law. In legal provisions the concept of animals is defined in line with the purpose of regulating certain aspects of social relations. This necessarily leaves a significant part of the species from the kingdom Animalia outside that concept. Therefore, the legal conception of animals does not align with the biological concept of animals. Modern requirements for the protection of animal welfare and consideration for the human-animal bond impact changes in various areas of civil law. Modern requirements for the protection of animal welfare and consideration for the human-animal bond impact changes in various areas of civil law. Thus, the law of obligations, including tort law in particular, have not remained unchanged. The provided analysis of the liability rules for damage caused by animals, as well as the pecuniary and non-pecuniary damage sustained by the injured party in the event of injury or death of an animal, has particularly included the impact of contemporary changes on law. The subject matter of research focuses on these two damage-causing cases and the respective civil liability rules: liability for damage caused by the animal, and liability for damage caused to the animal. The research objective is to analyze and assess the legal solutions pertaining to these two damage-causing cases. The research encompasses seven legal systems: relevant legal solutions envisaged in Austrian, German, Swiss, French, English, American, and Serbian legislation. The selection of these legal systems provides for a qualitative examination of legal systems with varying legal cultures and traditions, within the same or different legal families. The research methodology incorporates several research methods: the dogmatic legal science method, normative legal research method, comparative law method, and legal history method, as well as the systematic method, the multidisciplinary method and the content analysis method. The doctoral thesis is structured in three parts. In the first part of thesis, the research covers the issues pertaining to the legal position of animals as objects of law and, in particular, theoretical discussions on the justification of recognizing limited legal personhood to animals. enables to consider the multifaceted impact of contemporary changes in the field of animal protection on tort law. As a result of different perceptions on animal utility to humans, there are various legal classifications of animals, whose significance will be observed in the second and the third part of the thesis. In the second part of thesis, the research focuses on the legal grounds and requirements for establishing (tort) liability for damage caused by the animals, starting from the ancient legal systems to the contemporary ones. The legal culture and tradition of the analyzed legal systems have directly influenced the regulation of liability for damage caused by animals. In some legal systems, the designation of legal grounds on liability for damage caused by animals directly depends on the respective legal classifications of animals. Special attention is given to the Principles of European Tort Law (PETL) and the Draft Common Framework of Reference for European Private Law (DCFR), as supranational comparators. After analyzing the legal grounds and requirements for establishing liability for damage caused by animals, research focuses on the rights of the injured party. In addition to the right to compensation for damage caused by animals, the injured party also enjoys one distinctive right: the right to retain the animal and to establish a lien. Some legal systems also regulate the right to kill an animal caught in the act of causing damage. In the third part of thesis, the research focuses on the legal concept of damage in the event of injury or death of an animal. The recoverable damage is determined by the scope of protected interests of the animal owner, encompassing both pecuniary and non-pecuniary interests. There are considerable differences among the observed legal systems in the regulation of specific types of damage, which are in some cases reflected in completely opposite legal solutions. Based on the comparative analysis of the observed legal systems, the research conclusions indicate that Serbian tort law is the only one that does not regulate liability for damage caused by animals as a special case of liability. In order to apply the strict liability regime, domestic courts must first qualify an animal as a dangerous thing. The prevalence of strict liability in these cases of liability in the comparative legal systems speaks in favor of the adequacy of basing liability for damage caused by animals on the principle of causality. The regulation of non-pecuniary damage in the event of injury or death of an animal in contemporary tort law is actually the result of the impact of the animal welfare protection and respect for the emotional bond between man and animal. In addition, types of pecunary damage are also subject to change, primarily in terms of animal treatment costs. The aforementioned changes in contemporary tort law should be adequately considered in the process of codifying domestic civil law.

objektivna odgovornost, opasna stvar, subjektivna odgovornost, životinje kao objekti prava, pravni subjektivitet životinja, pravni pojam štete, pravne klasifikacije životinja

strict liability, dangerous thing, fault liability, animals as legal objects, animals as legal subjects, recoverable damage, legal classifications of animals.

347.516:636.1/.9(497.11)(043.3); 340.134:[502.211:592/599(497.11)(043.3); 592/599; 349.6

S 000; S 130.

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