The double liability rule

Conventional liability rules do not lead to a first best allocation. Optimal bilateral risk control can be achieved by not compensating any losses and, in addition, charging each party a fine equal to the loss suffered by the other party. In this way, each party internalizes the full accident loss. This paper investigates the properties of this double liability rule under risk neutrality and risk aversion of the parties. Finally the use of this rule in the context of multiple-party accidents is discussed.The key result of this paper were first presented at the European Association for Research in Industrial Economics (EARIE) in Berlin, 1986.     

On the Judgment Proof Problem

A party who causes harm to others and is found legally liable but cannot fully pay is said to be judgment proof. When the party who causes the harm is judgment proof, the incentives provided by the negligence and strict liability rules diverge. The payment probabilities implied by the two rules also differ. If the cost of care is non-monetary, as in Shavell's analysis, then the different probabilities generated by the two rules and the injurer's risk aversion combine to show that greater care is optimal under the negligence rule than the strict liability rule. If, however, the cost of care is monetary then the difference in probabilities generated by the two rules suffices to show greater care under the strict liability rule than under the negligence rule. The latter case holds for either a risk averse injurer or a corporate injurer.     

On the Judgment Proof Problem

A party who causes harm to others and is found legally liable but cannot fully pay is said to be judgment proof. When the party who causes the harm is judgment proof, the incentives provided by the negligence and strict liability rules diverge. The payment probabilities implied by the two rules also differ. If the cost of care is non-monetary, as in Shavell's analysis, then the different probabilities generated by the two rules and the injurer's risk aversion combine to show that greater care is optimal under the negligence rule than the strict liability rule. If, however, the cost of care is monetary then the difference in probabilities generated by the two rules suffices to show greater care under the strict liability rule than under the negligence rule. The latter case holds for either a risk averse injurer or a corporate injurer.     

Die ökonomische Funktion von Haftungsregeln bei Risikoaversion und Haftpflichtversicherungsmöglichkeiten

Most of the literature on the economic analysis of liability law reduces the economic importance of liability regulations to their prevention or incentive function. This is due to the premise of risk neutral decision behavior or to the assumption of ?costless“ insurance that is very often used in this context. In this paper the case of risk neutrality is discussed briefly. Then the relevance of risk aversion is explained, and results are presented from an analysis which integrates risk averse behavior and employs a more adequate modeling of the insurance supply, such that the risk allocation function of liability rules is given emphasis in addition to the aspect of loss prevention. An important result is that for large numbers of potential victims an ideal solution can be approximated by a negligence rule. This insight is particularly interesting in light of the fact that liability risks which are characterized by large numbers of victims usually are regulated by strict liability.     

Liability insurance under the negligence rule

We incorporate the concept of evidentiary standard to the analysis of the negligence rule under liability insurance and court errors. When the postaccident evidence is privately contractible and not too noisy, efficiency is achieved by both strict liability and a negligence rule with appropriate due care and evidentiary standards. When the evidence is not directly contractible, trial outcomes represent useful contractible information for the risk‐incentives tradeoff in the liability insurance policy. Strict liability is then inefficient and dominated by the negligence rule. The negligence rule can itself be improved upon by decoupling damages from the harm suffered by the victim.     

Die Deckungsvorsorge der Versicherungsvermittler nach der EU-Versicherungsvermittlungs-Richtlinie

Insurance intermediaries being obliged to be registrated in Germany due to the directive have to comply with severe provisions concerning cover provisions (i. e. Deckungsvorsorge). A third-party liability insurance is virtually compulsory for insurance brokers and insurance agents charged by several insurance companies (i. e. Mehrfach-Agent), other kinds of equal alternatives for them do not exist practically. Concerning exclusively charged insurance agents (i. e. Ausschließlichkeits-Agenten), as well as in a side job, an indemnity clause of their insurance company giving the third party full rights may be a an alternative complying with the directive. The minimum covering funds being prescribed by the directive of € 1 million per event of damage and the minimum annual covering sum of € 1.5 million are appropriate to third party liability risks of an average insurance broker on the German market, for almost all of the insurance agents on this market without a permitted covering provisions, with regard to their very little third party liability risks, they are too high. Nevertheless, the German legislator is not entitled to deviate from them to lower sums for lack of an authorization rule in the directive. German legislator should transform the rules of the directive into national ones as soon as possible in favour of the interests of the consumers worthy of protection, using the existing national regulations on lawyers, notary publics, tax consultants and accountants concerning minimum contents of compulsory cover provisions and agreed exclusive clauses.     

Die Haftpflichtversicherung nach der VVG-Reform

The reform of the German Insurance Contract Act (Versicherungsvertragsgesetz, ?VVG“) also targets key aspects of third-party liability insurance. The changes go beyond the findings made by both the courts and legal authorities to date.Compulsory insurance aside, the law still provides that an injured third party has no standing to assert a claim directly against the tortfeasor’s liability insurer. The tortfeasor may assign its indemnity claim against the insurer solely to the injured third party and may no longer be precluded from doing so under the General Insurance Conditions (AVB). Consequently, the tortfeasor’s indemnity claim against the insurer effectively becomes a pecuniary claim. This is criticised by the insurance industry particularly with regard to eliminating the prohibition against acknowledgment and satisfaction of claims.In the future, third parties will be able to assert claims directly against the tortfeasor’s insurer and this will be the case for compulsory insurance across the board. Provisions currently in effect in the motor vehicle liability insurance industry will be carried over to the entire compulsory insurance sector. Compulsory insurance does permit agreements involving self-deductibles. However, such agreements are generally effective only as between the insurer and the tortfeasor inter se, i.e. they are not effective as against third parties — in contrast to valid disclaimers of risk.Another change in compulsory insurance is the hierarchy of claims for compensatory damages and relief in the event the insured amount is inadequate. Specifically, the hierarchy gives preference to individual claims of injured parties which are not otherwise covered, such as claims for pain and suffering.The prohibition against the retroactive loss of provisional coverage for failure to pay the first premium, which had been criticised primarily by motor vehicle liability insurers, has been omitted in the Government bill.     

Evidence of Fraud,Audit Risk and Audit Liability Regimes

We investigate the effectiveness of proportionate liability in reducing the probability of fraud and audit risk relative to joint and several liability in two strategic audit settings: one that provides conclusive evidence of fraud and one that provides inconclusive evidence of fraud. In both settings the auditor makes an audit effort choice, but in the second setting the auditor also evaluates the audit evidence. Our results show that when the auditor chooses only effort, a proportionate liability rule with large marginal liability relief decreases audit risk. However, when the auditor also evaluates the audit evidence this result no longer holds.     

Konkrete und abstrakte Schadensberechnung in der Sachversicherung

The article deals with the question of whether the compensation owed by a property insurer is calculated according to abstract criteria or rather to the concrete expenses incurred by the policyholder in the individual case. For this purpose, the paper provides an overview of the principles of damage calculation in the fields of property insurance. In addition, the author draws a comparison between property insurance and liability law in terms of the basics of damage assessment. This particularly concerns the relationship between the so-called efficiency rule and the damaged party’s duty to minimize damages, but also the question of whether and to what extent the principles of liability law can be transferred to property insurance law. Finally, the author illustrates these principles by means of two examples from the field of vehicle insurance.     

Auditors' Liability, Vague Due Care, and Auditing Standards

This paper expands the set of previously considered liability rules to include a negligence liability rule with a vague specification of due care. Auditors who are negligent in conducting their audit are liable for losses that result from reliance on misstated financial statements. However, what constitutes negligence for auditors is not clearly specified in the law. Consequently, courts often resort to Generally Accepted Auditing Standards (GAAS) and Statements on Auditing Standards (SAS) as benchmarks for determining due care. A liability regime that consists of a vague negligence rule supports and amplifies the credibility of auditing standards. While auditing standards alleviate some of the vagueness that is inherent in the legal standard, they also form a lower bound on due care, since an audit of a quality that is lower than the quality that auditing standards require would be considered negligent. Thus, the vague specification of due care enables auditors to commit to audit quality as pronounced in auditing standards. This paper explores this link between professional standards and auditors' legal liability. It establishes that the commitment to auditing standards could not have been as credible as it is, if auditors' liability was determined based on the strict liability rule, or based on a negligence rule with a clearly specified due care, since under these two liability rules courts would not need to refer to auditing standards to establish fault. The paper also demonstrates that a legal regime where audit standards are used as a benchmark to evaluate negligence is not the same as a legal regime where due care is defined clearly. Therefore, previous studies that assumed a negligence regime with clear due care may have overstated the effort level that is induced by legal liability.     

Die Bedeutung der Haftpflichtversicherung für die Annahme konkludenter Haftungsausschlüsse

The article covers the practically important question under which circumstances the construction of implied exclusions of liability is influenced by the liability insurance of the injuring party. It is focused on the two practically most relevant case groups in which the jurisdiction considers implied exclusions of liability possible (liability in accommodation agreements and liability in sports). The author firstly shows that under tort law, the consideration of liability insurance is both possible and necessary. Secondly, the author demonstrates that possible objections based in insurance law (such as the principle of separation) are not convincing. This is not limited to compulsory insurances, but applies to all types of liability insurances.     

Optimism and auditor liability

There is strong evidence that individuals are optimistic in the sense that they underrate the probability of a negative event occurring. This paper provides a positive theoretical analysis of how auditor optimism affects their incentives to take care under two liability rules: strict liability and a negligence rule. Under strict liability, auditors are held liable when they cause damages to investors. Under a negligence rule, auditors are held liable when they cause damages and in addition, act negligently, that is, fail to meet the standard of due care specified in legal and professional rules. I find the following results. (1) If due care is sufficiently close to the efficient level, a negligence rule distorts auditors’ incentives less than strict liability. Under strict liability, optimism makes the auditor overestimate the chances of finding material mistakes and thus induces suboptimal care. (2) If due care is too strict, the auditor will not exert due care but the same level of suboptimal care under either liability rule. (3) With increasing optimism and in the absence of punitive damages, strict liability becomes less preferable to a precise negligence rule. This statement also holds for vaguely defined standards of due care if due care is sufficiently strict or if auditor optimism is sufficiently high. (4) Punitive damages counteract suboptimal incentives generated by auditor optimism, especially under strict liability.     

Optimal Insurance Policy Indemnity Schedules With Policyholders’ Limited Liability and Background Risk

This article makes two contributions to the insurance literature by studying optimal insurance policy indemnity schedules with policyholders’ limited liability and background risk. First, generalizing a prominent approach by Huberman, Mayers, and Smith (1983), it is shown that a welfare subsidy in the case of a ruinous loss may make the insurance premium “overly fair” for nonbankrupting losses and full insurance for this event becomes optimal. Second, introducing correlated background risk into this limited liability framework relativizes or even turns results by Doherty and Schlesinger (1983) as to the impact of background risk on optimal coverage into its opposite.     

Die Aufdeckung des tatsächlichen Schädigungspotentials eines versicherten Risikos und das Institut der Gefahrerhöhung

Against the background of the rapid spread of new technologies such as nanotechnology to name only one, third party insurers are faced with a multitude of challenges. The reason for this is the typically totally unknown damage and thus liability potential of these technologies. In this context special focus is on the aggravation of risk and the question whether the rights included in §§ 24 f. of the German Insurance Contract Act should be granted to the insurers in the event of any future revelation of the actual damage potential. This must, however, be answered in the negative since here only the risk of an initial and not the risk of a subsequent disruption of the equivalence mandate as assigned to the insured as per §§ 23 ff. of the German Insurance Contract Act applies.     

会计师事务所侵权责任抗辩事由研究

抗辩既包括程序法意义上的抗辩,也包括实体法意义上的抗辩,抗辩事由属于实体法上的抗辩。根据侵权责任的三层结构,会计师事务所侵权责任抗辩事由可按照客观构成要件阻却事由(不存在侵权行为、损害事实和因果关系)——违法性构成要件阻却事由(过失相抵、受害人故意和第三人过错)——主观构成要件阻却事由(不存在过错)三个层次,依次展开。在前一抗辩事由成立时,会计师事务所即无侵权责任,不必考虑后一抗辩事由;只有在前一抗辩事由不成立时,才须考虑后一抗辩事由。     

IPO注册制下发行人与中介机构虚假陈述民事责任研究

以信息披露为核心的股票发行注册制改革背景下,发行人与中介机构虚假陈述民事责任面临新挑战。统计发现,上市公司信息披露违规行为大多与控股股东、实际控制人的故意欺诈有关,建议在制度设计与监管执法方面强化对“首恶”的追责,并探索中介机构过错大小与责任承担相匹配的法律路径。中介机构之间的虚假陈述民事责任划分,应综合多维度指标,按照过错程度与导致损失的原因力大小确定责任份额,并厘清第三方主体间接导致虚假陈述的民事责任。在此基础上,从中介机构、行政监管与司法审判三方面提出对注册制下虚假陈述民事责任的风险防范与政策调整建议。     

Asset Pricing of Insurance Loss Liabilities: Some Examples

I construct examples of valuing insurance loss liabilities with asset pricing models, comparing the Rubinstein‐Leland model with the better‐known CAPM. The two models give different values only if the loss payment is asymmetric and correlated with the market portfolio, conditions which can result from the nature of the underlying loss or from the impact of insolvency on the insurer's payment.
In examples where insolvency is not possible and there is no liquidity cost of raising new equity on short notice, the value of a loss liability is equal to the value of the underlying loss, i.e., of the promised coverage, and depends neither on (1) the size of the loss pool; nor on (2) the unsystematic risk of the insurer's liabilities; nor on (3) the composition of an insurer's investment portfolio; nor on (4) the amount of insurer equity.
These factors do affect the value of a loss liability in examples where insolvency and liquidity costs are considered. Other things equal, if a factor increases the likelihood of insolvency, the fair value of a loss liability is lower because the insured is partially self‐insuring; but the liquidity cost of maintaining solvency by raising new equity on short notice is higher, implying a higher fair value of the loss liability.     

Anreizwirkungen von Haftungsregeln bei nicht nachgewiesener Kausalität

This article analyses the incentives generated by liability rules for non-causal damages on the basis of a cause assumption, which can be found in the German environmental liability law. In contrast to the basic model of the economic analysis of liability rules, where strict liability and the negligence rule induce the same precaution activities for risk neutral people, both rules differ in their incentives in the case of a cause assumption. It is shown that without a possibility of exculpation for intended business there will be inefficient incentives which result in an sub-optimal social income. If there exists (like in the German law) a possibility of exculpation for intended business, a tendency for reaching the optimal precaution level can be observed. Therefore from an economic point of view the use of strict liability in combination with the German version of a cause assumption leads to an efficient result.     

How suboptimal are linear sharing rules?

The objective of this paper is to analyze criteria for portfolio choice when two investors are forced to invest in a common portfolio and share the proceeds by a linear sharing rule. A similar situation with many investors is typical for defined contribution pension schemes. The restriction implies two sources of suboptimal investment decisions as seen from each of the two investors individually. One is the suboptimal choice of portfolio, the other is the forced linear sharing rule. We measure the combined consequence for each investor by their respective loss in wealth equivalent. We show that significant losses can arise when investors are diverse in their risk attitude. We also show that an investor with a low degree of risk aversion, like the logarithmic or the square root investor, often applied in portfolio choice models, can either inflict or be subject to severe losses when being forced to participate in such a common investment pool.     

Negligence,Ignorance and the Demand for Liability Insurance

This paper considers whether lack of information regarding risk exposures can lead to a demand for negligence liability insurance. We find that, under the uniform negligence rule, such as the “reasonable person” standard used to determine negligence in the U.S. and other countries, the value of information is positive and any demand for liability insurance must come from informed individuals. The necessary and sufficient condition is that good risks find it less costly to be negligent and purchase insurance.