Duties and liabilities in private law

Abstract

Private law is generally formulated in terms of right-duty relations, and accordingly private law claims are understood to arise from breaches of duty, or wrongs. Some claims are not easy to explain on this basis because the claim arises from an act that the defendant was justified in doing. The violation/infringement distinction seems to offer an explanation of such claims, but it is argued that the explanation is illusory. Claims of this sort are best understood as based not on a primary right-duty relation at all, but on a “primary liability” or “right-liability” relation. A primary liability claim is not a claim arising from the breach of a strict liability duty. The recognition of primary liability claims does not involve scepticism about duties or rules or legal relations and it is consistent with the analysis of private law in terms of corrective justice.