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Edinburgh Private Law Blog Posts

Attributing Wrongdoing Without Persons? Competition Law and the Challenge to Delict Theory: Part II

Attributing Wrongdoing Without Persons? Competition Law and the Challenge to Delict Theory: Part II

Published 24th October 2025

by Grigoris Bacharis, Lecturer in Private Law, Edinburgh Law School

I. Introduction

In my previous post, I explored the emergence of enforcement or regulatory delicts and, in particular, how the doctrine of the undertaking transitioned from public enforcement to competition damages claims. I argued that this development represents a striking departure from private law’s commitment to the concept of legal personality. By attributing liability not to a legal person but to an “economic unit,” the doctrine unsettles, among other things, the principle that responsibility must track wrongdoing and personhood.

As a tentative explanation for why this extension only applies in competition law, I proposed that the law tolerates such a radical departure from the principle of legal personality because there are certain delicts, such as competition damages, that have a hybrid character, part private, part public.

But should the law of delict and tort accommodate this shift? I argue that while the undertaking doctrine might be defensible on enforcement grounds, its coherence with private law’s normative architecture is deeply contested.

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Attributing Wrongdoing Without Persons? Competition Law and the Challenge to Delict Theory: Part I

Attributing Wrongdoing Without Persons? Competition Law and the Challenge to Delict Theory: Part I

Published 7th September 2025

by Grigoris Bacharis, Lecturer in Private Law, Edinburgh Law School

I. Introduction

I begin with a broad claim that I cannot fully defend here,[1] but wish to illustrate in part: significant areas of European delict (or tort) law are undergoing a subtle but meaningful transformation. Across domains such as environmental harm, data protection, and competition enforcement, delictual claims are increasingly mobilised to serve regulatory aims. As scholars like Kysar have noted, claimants are no longer simply seeking redress for private wrongs.[2] They are enforcing public norms through private litigation.

This shift gives rise to what might be called enforcement or regulatory delicts: private actions that retain the formal structure of delict law but pursue objectives—deterrence, compliance, and systemic accountability—that are quintessentially public. The trend is inspired mainly by American legal practice, where private enforcement, via torts, federal claims, mass litigation, and settlements, is widespread and arguably expanding.[3]

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New insights through defamiliarization

New insights through defamiliarization

Published 20th August 2025

By Anna Bleichenbacher, PhD student, University of Basel[1]

I. Prologue

Compare how it felt to speak your first words in a foreign language with how it feels now after years of practice. Once we can do things as a matter of habit, they start to become automatic for us. Deliberately framing something in a different perspective – what the Russian literary theorist Shklovsky said about the role of art in his concept of ‘defamiliarization’ (‘ostranenie’)[2] – challenges that automatic response. Defamiliarization is also possible in legal research. It enables us to take a new look at our own jurisdiction and how we work within it.[3] Studying and researching only in our home jurisdiction makes everything we do there feel natural to us – even inevitable. All that changes once we see it from the outside.

Breaking through this habituation and seeing familiar things with new eyes can be facilitated by a research stay abroad. In 2024 the author of this blog entry undertook a six-month research stay at the University of Edinburgh. This entry deals with the differences in the research and teaching between Edinburgh and Basel, as well as the new perspectives the author gained from her time abroad. She experienced an ‘ostranenie’ that challenged her automatic assumptions of how the law had to be.

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Error in the Law of Contract: Shaping a Doctrine Fit for the 21st Century

Error in the Law of Contract: Shaping a Doctrine Fit for the 21st Century

Published 21st July 2025

by Lorna Richardson, Senior Lecturer in Commercial Law, University of Edinburgh

Introduction

Error is often described as one of the most complex parts of the law of contract. The reason for this is the clash between two opposing interests. On the one hand, a will-based theory of contract focuses on the parties being bound by having, of their own will, chosen to enter into the contract. As such, subjective will is significant. If, due to an error, a party entered into a contract believing something about the contract to be true which was not, she did not intend to be bound to the contract she ultimately entered into. On a will-based approach then, the party in error should not be bound by the contract. On the other hand, however, is the need to uphold contracts that have objectively been entered into. This is important for reasons of certainty. Parties need to be able to arrange their affairs on the basis of what the contract seems to require. It also protects the interests of the party who was not in error in entering into the contract. In framing and shaping the rules on error a legal system must thus seek to balance both positions and to adequately protect the interests of both parties.

In most legal systems it is not any error that can be used as a basis to challenge the validity of a contract. The error must generally relate to something important in relation to the contract. [1] For instance, the DCFR provides for avoidance where, but for the mistake, the mistaken party would not have concluded the contract, or would have done so only on fundamentally different terms (Art II-7:201). Many legal systems provide that an error by one party is not of itself enough to challenge the contract and they require something more, such as the mistake being shared or caused by the other party to the contract.[2] In order to protect the interests of both parties some systems, such as Germany and Greece, allow a party in error to avoid the contract but require her to pay damages to the other for losses caused due to the latter’s reliance on the contract.[3] There is therefore a spectrum between requiring full subjective consent to a contract for it to be upheld, on the one hand, and upholding all contracts objectively entered into, on the other.

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Homer, Paulus, and the Evolution of Economic Exchange – Part II

Homer, Paulus, and the Evolution of Economic Exchange – Part II

Published 26th June 2025

by David Fox, Professor of Common Law, University of Edinburgh

Introduction

As we saw in the first part of this blog entry, Paulus explains all three of the exchange transactions in the Homeric texts as instances of permutatio.  If we focus only on the material things passing in each direction, that characterisation seems accurate enough.  But that view would overlook the non-material differences among them, which in Homeric times would have separated the transactions into distinct kinds of exchange.  Each had a different motivation which would have placed it in a distinct domain of social activity.  The distinctions among them become still more blurred if we translate permutatio simply as “barter”, which has connotations of a commercially-motivated exchange, one that differs from purchase only in the absence of money.

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