Causation. The promisee’s act or omission must be a conditio sine qua non for the promisor’s 3 failure to perform.12 It is debated whether an exemption under Article 80 requires that the promisee’s acts or omissions alone be the cause for the non-performance or whether the provision also applies if both parties have contributed to the non-performance. Some commentators contend that Article 80 should not apply to cases of joint responsibili- ty.13 Instead, losses should be allocated among the parties under → Art. 77.14 The domi- nant counter-position refers to the Convention’s text (‘to the extent that’).15 Under this approach, the consequences of joint causation must be determined with respect to each party’s respective degree of contribution (see → para. 6 below).16 In principle, the promisor is not obliged to overcome obstacles to performance that 4 are due to the promisee’s acts or omissions.17 Yet, exceptions are acknowledged for obsta- cles that can be easily avoided or overcome by the promisor (→ Art. 7(1)). Unclear in- structions or incorrect information about a delivery address are examples of such minor failures that – depending on the circumstances – can be expected to be remedied by seeking clarification.18 A slightly different issue arises in cases where the buyer could not avoid the non-con- 5 formity of goods but could have taken steps to avoid damages. The German Federal Court of Justice rejected the application of Article 80 in a case where a seller had deliv- ered a toxic charge of clay (used for sorting potatoes). As the court explained, Article 80 was not directly applicable since the buyer had not contributed to the delivery as such. (3rd xxx, X.X.Xxxx 2013); Xxxxxxxx Xxxxxxxxx, ‘Article 80’ para. 3, in Xxxxxxxx Xxxxxxxxx (ed), Commen- tary on the UN Convention on the International Sale of Goods (CISG) (4th edn, OUP 2016).
Causation. “Bad thinking, calculating, you have work to do in front of you and you have nothing in front of you to be able to do it. You are not capable. All day I calculate; I want to do it, but I am not capable.” – Xxxxx, community member “Thinking like that, he can even lose his mind and drift in total madness.” – Lwi, community leader “Once you stop playing soccer or cards, you start thinking again about the roots of your problems.” – Xxxxxxx, community leader
Causation. The passing-on defence requires, in any event, that the claimant has passed on all or part of the overcharge resulting from the infringement of competition law, i.e. the existence of a causal link between the infringement and the alleged overcharging by the injured party. Since the Directive does not regulate (at least directly) the causal link between the infringement and the passing on of the overcharge, it is up to the Member States to establish the requirements for its application. According to factual causation or cause in fact, it is not sufficient that prices on the aftermarket also increased in the period following the infringement, but that the will often reduce the amount of damages. However, […] the contrary is rather the rule.” See EUROPEAN GROUP ON TORT LAW, Principles of European Tort Law. Text and Commentary, SpringerWienNewYork (2005), pp. 156-159. 93 This may be indicative of a certain reticence on the part of the Commission towards the preventive function that the Court of Justice attributes to private actions for damages for infringements of competition law, because of its possible interference with public enforcement. 94 "(T)he loss which has been passed on no longer constitutes harm for which the party that passed it on needs to be compensated" (Recital 39). 95 Damages Directive, recital 46. increase in the price is a consequence of the infringement, i.e. that the price set by the plaintiff is not the consequence of a commercial decision at his/her own risk, but that it is higher than the price that would exist if the infringement had not occurred.96 Since the price is merely a reflection of the changing information available at any given moment in the market, it can be influenced by an increase in production costs caused by the passing-on of the overcharge, but also by an increase in market power, an increase in demand, or a combination of some of these or multiple other causes, often unknown even to the plaintiff. Consequently, in order to isolate the effects of the infringement from those of other factors that would have affected that price even if the infringement had not taken place, it is necessary to establish a counterfactual scenario,
Causation. In two places in its judgment, the Medical tribunal emphasized that a defendant‟s failure to properly supervise his subordinates had played a causal role in their commission of crimes. First, it concluded that Xxxx Xxxxxx‟s “dereliction” with regard to the Nazis‟ euthanasia program had “contributed” to the extermination of non-German nationals. 119 Second, it 112 Id. at 1271. 113 See, e.g., High Command, XI TWC 632; Einsatzgruppen, IV TWC 513; Medical, II TWC 206. 114 Einsatzgruppen, IV TWC 513. 115 Hostage, XI TWC 1311. 116 Medical, II TWC 222. 117 Hostage, XI TWC 1272. 118 High Command, XI TWC 524. 119 Medical, II TWC 198. pointed out that if Xxxxxxxxx had exercised his authority over the typhus experiments at Buchenwald, “later deaths would have been prevented.”120 Neither the Medical tribunal nor any other tribunal, however, ever suggested that a causal relationship was a necessary condition of a defendant‟s responsibility for the failure to prevent the occurrence or recurrence of crimes.
Causation. Nothing in this Article XI shall relieve the Tenant from the obligation to compensate Landlord for damage or injury to the Real Property due to or caused by Tenant's or Tenant's agent's, servant's, employee's, licensee's or invitee's use and occupancy of the Real Property, its or their negligent acts or omissions or its or their willful acts or failures to act.
