Ex AnteIt is also possible to use this case to formulate a rule that has the best
results for this case and all future similar cases. This rule should not incorporate the
details of the present case in order to be useable in the future. This is called “ex ante
determination,” because the rule is formulated with an eye to future cases too
(“ante” is Latin for “before”).
One might wonder what the difference is between ex-post and ex-ante
evaluations. A rule that is good for an existing case is also good for future cases,
is it not? Not necessarily. A rule that is formulated beforehand can still influence
behavior that might cause damages, while a rule that only looks at the allocation of
liability after the damages occurred cannot. The fundamental difference betweenex
postandex anteevaluations in liability law is whether the law focuses only on the
best allocation of existing damages or also on the prevention or minimization of
future damages.
Efficiency In anex anteevaluation, the issue at stake is which allocation of
damage has the best results. To determine this, it is still necessary to formulate a
standard at the hand of which it can be determined what “the best results” are. One
such a standard is efficiency.
The branch of legal science that looks at legal rules (1) from an ex ante
perspective and (2) at the hand of the efficiency standard is calledLaw and
Economics. The Law and Economics approach is very influential in the law that
deals with liability for damages, in particular in the USA.
According to the efficiency standard, the best result is that in which the total
amount of costs is minimized. The rule that allocates liability should be formulated
in such a way that the total amount of the expected costs for potential tortfeasors
and potential victims of damage is made as small as possible. The way in which the
damage is divided over tortfeasors and victims is only relevant to the extent that the
division influences this total amount of costs.
Note that one should look at the sum of theexpectedcosts, because we deal with
ex antedetermination, and try to minimizefuturecosts. We find this future-
regarding approach both in the Learned Hand formula and in the rules of thumb
that were formulated in the cellar hatch case.
6.5 Liability for Damage Caused by Other Persons
Let us have another look at the case of Mr. Sjouwerman, who left the cellar hatch
open, and Mr. Duchateau, who fell through it. Mr. Sjouwerman was an employee of
the Coca-Cola Company, and as a matter of fact Mr. Duchateau claimed compen-
sation from the Coca-Cola Company, adducing that Mr. Sjouwerman had not taken
sufficient precautions because he left the cellar hatch open.
Vicarious Liability Why would the Coca-Cola company be liable for the fault of
Mr. Sjouwerman? There is both a brief and a lengthy answer to this question. The
brief answer is a description of the law as it actually is, while the lengthier answer
112 G.E. van Maanen and J. Hage