4.4 ADSORCIÓN EN COLUMNA (CIC) COMO PROCESO ESCOGIDO

The second reason we ought to accept the distinction is that it affords a more nuanced set of possibilities about which corrective duties may exist. So far I have focussed on those that follow from wrongful positive acts, but I noted that the analysis of such duties is not conceptually bound to these. They may arise by virtue of wrongful omissions, in addition to

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other events besides wrongs, such as causing harm without fault. Some may even arise without wrongdoing or causation.

Consider the following cases.

Case 1: D knocks over V’s fence. If it remains this way V will suffer a loss. D can put up the

fence with minimal cost.

Case 2: D sees that V’s fence has fallen over. If it remains this way V will suffer a loss. D can put up the fence with minimal cost.

Case 3: D knocks over V’s fence and V’s chickens escape, causing her a loss. D can give V

a benefit that equalises her wellbeing which will involve a minimal cost for D.

Case 4: D sees that V’s fence has fallen over and V’s chickens have escaped, causing her a

loss. D can give V a benefit that equalises her wellbeing which will involve a minimal cost for D.

The corrective measures specified in cases 1 and 3 are negatory as they involve removing a threat of future loss to V. Putting up the fence will render V’s future wellbeing identical both in terms of its shape and quality. The corrective measures specified cases 2 and 4 involve counterbalancing a loss that has already occurred. Given that V’s wellbeing has already been reduced, it cannot be rendered identical, but by providing a benefit, D can render her equally well off. Moreover, in cases 1 and 3, D causes the detrimental state, whereas in cases 2 and 4 there is no causal link between D’s conduct and the detrimental state. Finally, let us suppose that D is not at fault for knocking over V’s fence in cases 1 and 3.

Many people would accept that D has a corrective duty in case 1 and not in case 4. If D knocks over V’s fence through her voluntary action, even if she is not at fault, she ought to put it up if doing so involves minimal cost. Conversely, in case 4 it is implausible to

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require D, a passer-by, to pay for a loss that she did not cause. The loss has already been incurred, and (let us imagine) D is no better situated than anyone else to counterbalance it, so there seems to be no reason why the burden should fall on D. Cases 2 and 3 may be more controversial. In case 3 D causes a loss through her voluntary action, but she was not at fault for doing so and is not culpable. The plausibility of imposing liability on her may turn on the opportunity she had to avoid causing the loss. In case 2 D does not cause any loss, but the forthcoming loss is preventable and she is the only person who has the opportunity to prevent it. Views about whether corrective duties exist in these cases will turn on the significance of preventability and causing loss through voluntary action.

It is not my present purpose to explore each of these questions. The point I want to make is this: it is more plausible that there is a corrective duty in case 2 than case 4, even though D plays no role in knocking over V’s fence in either case. A number of features of case 2 count in favour of D owing a corrective duty: (1) the loss is preventable (2) D is the only person who can negate the threat (3) D is able to do so with minimal cost. Only (3) is also true of case 4, so it is less plausible that a corrective duty exists there. At the very least, in case 4 there seems to be no reason why V should be the only person who is subject to a corrective duty, given that she is no better situated than anyone else to counterbalance the loss. If loss spreading is not possible, it is implausible that D has any duty in case 4 at all. In case 2, where loss spreading is also impossible, there is still a reason to impose a duty on D.

This shows that negatory duties may arise in the absence of either wrongdoing or causing loss without fault in cases where the same is not true of counterbalancing duties. Of course, it may still be true that in other cases, counterbalancing duties can arise without wrongdoing or causation, such as political duties to contribute to a tax scheme designed to counterbalance the disadvantages of those with congenital disabilities. The fact that in case 2 D is uniquely well situated to avoid an interference in V’s wellbeing seems to explain the intuitive difference between the cases. This suggests that the possibility of preventing some loss goes some way towards justifying a corrective duty when other key features, such as wrongdoing and causal responsibility, are absent.

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I will not pursue these possibilities any further. My point is that the existence of a corrective duty in case 2 is an open question which is obscured unless we properly distinguish between negatory and counterbalancing duties.