اضطرار در حقوق مسووليت مدني

Necessity in Tort Law

The article examines the status of necessity in the law of torts. There is no doubt that necessity precludes the harmful act from being characterized as faulty, and allows taking measures which are otherwise unlawful and illegal. But the question is whether it exempts the agent from its consequences. The issue has divided the legal systems. According to one view, necessity does not preclude civil liability and the person in distress must remedy the damages suffered by the victim. It is true, however, that some legal systems grant the judges full discretion to consider equity in determining the extent of liability of the respondent. An alternative view holds that since in cases of necessity, the act of the agent causing harm is taken to prevent a greater harm to him/her or to another, necessity must be regarded as exempting the agent from civil liability.The above discussion notwithstanding, necessity may, in certain circumstances, create obligations for some persons which cannot be studied within the framework of the law of civil liability; their justifications must be sought in other grounds of obligation. The author tries to examine the issue and clarify, to the extent possible, the ambiguities surrounding the issue.