Applying the Standard of Reasonable and Conventional Person to Determine the Negligence in Tort Law around the Women and Children in Common Law

Document Type : Scholarly Article

Author

PhD in Jurisprudence and Private Law, Kharazmi University, Tehran, Iran

Abstract

Negligence, how to evaluate and verify it, has been the subject of many discussions in Tort Law. Considering in the previous discussion, it is difficult to determine the Negligence and find out the faulty behavior in a personal way, in every case without inventing and applying a universal standard, a kind of fault theory was raised, therefore; Based on that theory, an indicator was created under the title of "reasonable and conventional Person" to measure the doubtful behavior of that supposed person being and infer his/ her Negligence or lack of it. But, about the above criteria, it has been exaggerated to the extent that all the differences and different capabilities of human beings have been forgotten in such a way that a "reasonable person" is simply considered to be a "reasonable adult man". Accordingly, in this article, by insisting on the differences that exist in women compared to men and in children compared to adults, we intend to criticize and violate the above one-sided view regarding reference to the criteria of a reasonable and conventional person, as far as, instead of the above absolute criteria, we should use the criteria of "reasonable woman" and "reasonable child" in related cases to determine negligence. In this regard, we consider the Common Law legal system as a suitable platform for studying and achieving the results of the current research work to rely on judicial opinions. This article has been done by the descriptive-analytical method along with the normative approach and found that it has been noted the differences between men and women, children, and adults by referring to reasonable criteria conventional person being in the Common Law Legal System after a period and this importance has also been reflected in the main characteristic of common law, which is the judicial opinions issued by the courts.

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Biannual Journal of Family Law And Jurisprudence
Volume 29, Issue 81
May 2024
Pages 5-36

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