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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