美國 不法行爲法에서의 純粹經濟的 損害

Abstract

The economic loss rule states that a plaintiff cannot recover for negligence that causes pure economic loss. The rule, which has been significant in products liability ever since the 1960s, has become even more significant in recent years, as courts have rejected possible exceptions to the rule. During recent years, the rule has also been invoked so as to bar negligence claims by home buyers against home builders. In these cases involving defective products and defective homes, courts have properly resorted to the rule in order to recognize the primacy of contract(and warranty). In other cases in which the rule has been applied, its rationale relates to a concern for protecting against an excessively open-ended liability. In such cases, American jurisdictions now apply the rule much of the time, but not all the time. In many cases in which the rule might be thought to apply, courts seem unaware of the rule's existence. Even so, in certain cases courts implicitly acknowledge the rule and its rationales by denying liability under the heading of 'proximate cause' (hence healthcare providers have been denied claims against tobacco companies). In other cases in which the negligence of the defendant brings about the plaintiff's economic loss, neither the concern for contract nor the concern for an excessive liability seems germane. In such cases, in essence courts ignore the rule and decide the cases based on an assessment of the particular policy considerations that the cases raise. Overall, then, there are at least four senses in which the economic loss rule can be called a 'supposed' rule. First, it is a 'supposed' rule in the sense that at least a limited number of leading modern opinions have professed to reject it. Second, in the sense that it breaks down into two distinct rules - one motivated by a concern for contract, the other motivated by a quite different concern; these two rules apply to quite different categories of cases. Third, in the sense that courts frequently fail explicitly to acknowledge the rule, even when they may be implicitly applying it. Finally, in the sense that courts ignore the rule altogether in many cases in which the various concerns that underlie the rule seem not to be pertinent. What all of this makes clear is that cases involving negligence and economic loss are multifarious in terms of the issues and problems they raise. Accordingly, no single rule can even begin to determine how all such cases should be decided.