Friday, January 13, 2012

Torts: Objective vs. Subjective Standards

A question from a reader:

What is the difference between objective, subjective and reasonable person standard in torts? I need it for MBE and MEE questions. Thanks!


In general, you should definitely know the distinction, as it comes up in other MBE subjects as well (such as Criminal Law, Contracts, etc). An objective perspective essentially means that the mindset of the individual is not important, but rather what is important is how a reasonable person would have acted under similar circumstances. In that respect, an objective standard is synonymous with the reasonable person standard. (In criminal law, you see this standard in self-defense when it is asked whether a reasonable person would have feared for his life. In torts, it's seen in Negligence with some exceptions.) A subjective perspective, on the other hand, takes into consideration the mindset of the individual, rather than asking how a reasonable person would have acted under similar circumstances.


  1. What are some examples of how the subjective standard comes up in tort, criminal law or other areas? Doesn’t it just come up and isn’t it just given it’s particular name, for example as a special tort duty or a higher standard of care or in the heat of passion defense in criminal law?

  2. Subjective vs objective standards run throughout quite a few of the subjects tested on the MBE. An example of an objective standard would the reasonable person test in Negligence. A subjective standard, in contrast, would be, for example, ambiguity in Contracts. We ask whether a person was unaware that a term might have two meanings, rather than asking whether a reasonable person would have been unaware. Voluntary manslaughter (heat of passion) is an interesting one in that there are both subjective and objective standards. For example, one element is whether the defendant had enough time to cool off (subjective), and one is whether a reasonable person would have had enough time to cool off (objective).

    The best approach if you're undecided is to determine whether it matters what any individual was thinking at the time of an act, because if so, it is a subjective standard. But if we don't care what any specific individual is thinking, but rather the concern is what a reasonable person would have thought, it's objective.

  3. What use may be made of evidence of statements as to the meaning of the words made by the parties during negotiations? Is their conduct after the contract has been made relevant for any purpose?

    How do you answer this question if asked? Please help. Thank you.

    1. If you come to an issue like that think of the Parole Evidence Rule. If those negotiations took place prior to the contract being formed or at the same time as the contract being formed, then the parole evidence rule will keep those oral statements out of court. In other words, they should have been written into the contract, assuming the contract was complete.

      There are exceptions though for example if the oral statements will clear up an ambiguity/mistake, or if the oral statement was a condition precedent to one party's obligation to perform.

      Does that address your question?

  4. This site is very informative, thank you.

  5. I have been looking for a good explanation on subjective/objective/intention while studying R v Nedrick. Reading through this page has provided a good answer for me.
    Thank you.