by Kirstein  on 01 Feb. 2010 20:08
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Hi again,
I can assure you that this classification stuff is not overly relevant for the final... Anyway: First of all, penal and criminal law are (used as) synonyms.
Second: Nuisance law relates to disturbances/harm inflicted upon a victim/potential plaintiff by an offender which can easily identified. The nuclear power plant nearby, the nasty neighbor, the guy in the next office may engage in activities that exhibit two effects: some increased utility on their side, some harm on mine. As the offender can be identified (often even in advance), the application of the property rule (i.e., decentralized bargaining) makes some sense, if other TAC are low enough. In such cases, the Coase theorem claims that the initial allocation of property rights is irrelevant for efficiency (albeit not for distribution), while it may have an impact on activity levels if parties do not have quasi-linear utility functions.
In tort cases, the potential offender can usually not be identified ex ante (should that be possible, then the distinction between tort and nuisance is indeed pretty difficult). Hence, society usually has to resort to the liability rule, but now the real problems begin: what are the conditions for liability? (None => strict; too little care => negligence) What amount is due in case an offender is held liable? (In other words: the price is fixed ex ante, and via a social contract, instead of ex post and via a decentral contract).
Best
RK
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