Contracting Out of the Provision of Welfare Services to Private Actors and Liability Issues
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Contracting Out of the Provision of Welfare Services to Private Actors and Liability Issues. / Ulfbeck, Vibe Garf; Andrecka, Marta.
In: Journal of European Tort Law, Vol. 8, No. 1, 2017, p. 78-99.Research output: Contribution to journal › Journal article › Research › peer-review
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TY - JOUR
T1 - Contracting Out of the Provision of Welfare Services to Private Actors and Liability Issues
AU - Ulfbeck, Vibe Garf
AU - Andrecka, Marta
PY - 2017
Y1 - 2017
N2 - The article discusses liability issues related to the contracting out ofwelfare services. It focuses on the possible liability of the private actor and of thepublic entity towards the individual (the citizen) for non- performance or malperformanceof the welfare service. It is argued that since there is no contractbetween the individual and the private service provider there may be severalobstacles to a claim against the private service provider based on contract. At thesame time it is a general tort law principle that there is no vicarious liability forindependent contractors, making it difficult also to succeed with a claim againstthe public entity based on tort law. Thus, a liability gap seems to exist. However,the article demonstrates that there are signs in different jurisdictions that solutionsare being found in case law to this problem allowing to some extent for theimposition of some kind of vicarious liability on the public entity. Four differentmodels are identified. The reasoning behind these models varies but they all havein common that the public law nature of the service that has been outsourcedsomehow plays a role.
AB - The article discusses liability issues related to the contracting out ofwelfare services. It focuses on the possible liability of the private actor and of thepublic entity towards the individual (the citizen) for non- performance or malperformanceof the welfare service. It is argued that since there is no contractbetween the individual and the private service provider there may be severalobstacles to a claim against the private service provider based on contract. At thesame time it is a general tort law principle that there is no vicarious liability forindependent contractors, making it difficult also to succeed with a claim againstthe public entity based on tort law. Thus, a liability gap seems to exist. However,the article demonstrates that there are signs in different jurisdictions that solutionsare being found in case law to this problem allowing to some extent for theimposition of some kind of vicarious liability on the public entity. Four differentmodels are identified. The reasoning behind these models varies but they all havein common that the public law nature of the service that has been outsourcedsomehow plays a role.
KW - Faculty of Law
KW - welfare services
KW - contracting out
KW - Liability, Legal
U2 - 10.1515/jetl-2017-0004
DO - 10.1515/jetl-2017-0004
M3 - Journal article
VL - 8
SP - 78
EP - 99
JO - Journal of European Tort Law
JF - Journal of European Tort Law
SN - 1868-9612
IS - 1
ER -
ID: 174661748