The fault of trespass

Avihay Dorfman, Assaf Jacob

Research output: Contribution to journalArticlepeer-review

Abstract

The conventional wisdom has it that jeiiy owner suiflc virtually no responsibility /br guiding others in Jul/illing their duties not to trespass on the formers property. In other words, the entire risk of making an unauthorized use oft/ic property in question rests u/Jon the duty-holders. This view is best captu red by the keep-off picture property, according to which the content of 1/u' duly in question is that of excluding oneself/mm a thing that is not ones own. In lhi.c article, we argue that this view is mistaken. We adva n ('P conceptual, normative, 011(1 (focI i'inal a rgumen Is to s/sow 1/sat this account runs afoul oft/se actual workings oft/se tort in question. A more precise account 0/trespass to land will reveal that the tort gives rise to a hybrid regime 0/tort /iabthty, one which combines considerations of/a silt along soil/i those of strict liability. On 1/se proposed account, there/öre, an owner (toes assume some responsibility for guiding others in fulfilling tile duty they owe the former.

Original languageEnglish
Pages (from-to)48-98
Number of pages51
JournalUniversity of Toronto Law Journal
Volume65
Issue number1
DOIs
StatePublished - 1 Dec 2015

Keywords

  • Fault liability
  • Owner responsibility
  • Pmperty
  • Strict liability
  • Trespass

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