Can We Understand the Imputation of Negligence From Efficiency Alone?

In private law, legal rules are generally evaluated based on either fairness or efficiency. There is debate about the appropriateness of these two perspectives. In this article, we examine a specific tort law rule — the imputation of third-party negligence — to assess the extent to which the fairness and efficiency perspectives diverge. The doctrine of imputed negligence attributes the negligence of an injurer to the tort victim under certain conditions. We detail the circumstances in which such an imputation of negligence occurs (primarily in Danish law). The doctrinal analysis provides the necessary foundation for comparing fairness arguments from legal literature with efficiency arguments from our own economic model. Our main finding is that the fairness and efficiency perspectives converge on almost identical determining factors for imputed negligence. Additionally, we find that analyzing incentives serves to refine fairness-based arguments for imputing negligence.