Экзамен зачет учебный год 2023 / Koziol Prevention in Law

is always established if damages are greater than the advantage gained as a result of the injuring activity minus the advantage gained without conducting the injuring activity.

This formula seems convincing – but only at first sight. On closer analysis, this line of thought suffers from a severe fallacy: it neglects the fact that one has to take into consideration that in the case of gaining advantage by a tortious act, the offender is nearly always exposed not only to a claim for compensation of the resultant damage but also a claim under the law of unjust enrichment which is directed on siphoning off the advantage gained.106 Therefore, the general formula has to be refined by requiring that not every advantage gained by the damaging activity is to be taken into account but only such advantages as can not be siphoned off. Further, it must be pointed out that the general formula also neglects other legal consequences which may in many cases have great influence on people’s decisions on how to act, last but not least including possible sanctions under criminal law and administrative penal law.

It is quite astonishing how often thoughts are fixated on only one remedy and to what extent the interplay between the numerous legal instruments and remedies applicable is neglected.

4. Special need for prevention in the area of intellectual property

Reference is repeatedly had to the argument that even in combination with other claims, such as for unjust enrichment by interference, the law of tort is not capable of providing the necessary protection for the rights recognised by the legal system; this is emphasised above all with respect to intellectual property,107where this has already led to the awarding of payments twice as high as the licence fee that would have been due.108 T hese could be understood as punitive or preventive damages: due to their intangibility – thus the argument – intellectual property interests are »omnipresent« and facilitate simultaneous use by several people at several different places. However, this greater vulnerability is associated with particular difficulties when it comes to damage assessment as unauthorised use does not prevent use by authorised persons and thus any restrictions of the freedom to dispose of the good are difficult to prove. Any disgorgement of the profit gained by the interference under the law on unjust enrichment would only have minor deterrent effect, the argument continues, since such is only directed at the disgorgement of the advantage gained and thus involves no disadvantages for the interferer but only means he cannot realise the advantage for

106T his is, eg, also neglected by Schmidtchen D., Wozu Strafrecht? Einige Anmerkungen aus ökonomischer Sicht, in Ott C., Schäfer H. B. (eds.), Die Präventivwirkung zivilund strafrechtlicher Sanktionen, Tübingen 1999, 64; Schlobach K., Das Präventionsprinzip im Recht des Schadensersatzes, BadenBaden 2004, 457 f.

107On this in more detail by Dreier (n. 104 above), 60 ff., with additional references; Schlobach K., Das Präventionsprinzip im Recht des Schadensersatzes, Baden-Baden 2004, 174 ff.

108See Dreier (n. 104 above), 293 ff., with additional references.

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which he hoped. Besides this, the interferer’s risk of getting caught is not very high, concludes the argument.

These references to the vulnerability of intellectual property rights and the insufficient deterrent effect of the existing remedies open to victims are certainly persuasive. However, it must be pointed out that the same situation may arise in relation to certain tangible things. One example would be mass transport systems, which can also be used simultaneously by many people and in which context it is likewise hard to prove the damage sustained by the owner in the case of unauthorised use. In this case too, the payment of the appropriate fee enforceable under the law on unjust enrichment109 has no deterrent effect: someone travelling without a ticket would only have to pay what he should have paid in the first place anyway – should he be caught; moreover, he runs a good chance of not being caught.

Therefore, it is hard to find sound reasons for confining any doubling of the fee payable when users conduct themselves lawfully to intellectual property law; rather this principle would have to be extended to all cases which concern the unauthorised use of third-party goods in the context of high vulnerability and when subsequent payment of just the normal fee does not obtain the necessary deterrent effect.

Furthermore, the basic objections to punitive damages, which have been explained in more detail above speak against the doubling of the fee otherwise payable – at least prima vista. Nevertheless, I consider it possible to reconcile the above-described doubling of the fee in cases of unauthorised use with the notion of compensation and thus to circumvent the reservations associated with punitive damages: on the one hand, the doubling of the usual fee for use is a very limited increase of the compensation so that no uncertainty as regards the penalty or proliferation thereof must be feared.110 On the other hand, the doubling of the fee could indeed be understood not as a penalty independent of damage suffered, but as damages in a lump sum for the harm sustained in the absence of adequate means of assessing such: the investigation and pursuance of unauthorised users and the enforcement of the claim typically necessitate considerable expense, which would not arise if a contract for use was duly concluded, and are extremely difficult to prove. Likewise, proving the damage arising from market disturbance when intellectual property rights are infringed is subject to almost insurmountable difficulties in terms of evidence. If in the absence of other more specific indicators, the extent of the harm is stipulated to be equivalent to the fee for use and this amount is accordingly added to the fee that was never paid, awarding double the fee for use can be reconciled with the notion of compensation under the law of tort.

109 On the civil law claims see, for example, Stefula M., Zivilrechtliche Fragen des Schwarzfahrens, Österreichische Juristenzeitung (ÖJZ), 2002, 825 ff., with additional references.

110 T his is also highlighted by Dreier T., Kompensation und Prävention, Tübingen 2002, 547.

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5. The notion of continuation of a right (Rechtsfortsetzungsgedanke)

The notion of providing for the continuation or continuing effect of a right or interest takes as a basis the deterrent function;111 there is widespread consensus in Austria that it provides affirmation for objective-abstract assessment of damage. Specifically, the notion of continuation of a right sees the injured right or legal good as surviving in a claim for compensation: in lieu of the destroyed good, a claim against the damaging party arises. As the legal system protects the rights and legal goods based on their general appreciation in the legal community, the notion of continuation of a right leads to a claim for compensation for the »ordinary value«, ie the market value, regardless of the concrete interest of the owner who suffered the loss.

Thus, the notion of continuation of a right secures the emergence of a duty to compensate provided the other relevant criteria for imputation are satisfied, thus serving the function of deterrence:112 the damaging party must compensate as minimum damage the objective-abstract value loss, at least if the destroyed or damaged good enjoyed general appreciation, and even if the subjective damage is less or the damage has been shifted. This safeguarding of the duty to compensate reinforces the incentive to avoid inflicting damage.

This mode of calculation does not – as is sometimes alleged113 – contradict the principle of prohibition of enrichment: the victim in fact does sustain a pecuniary loss

– open to objective assessment – and thus also the power to dispose over this value as he did previously. Apart from that, this method of assessment is justified by the notion of continuation of a right.

However, objective-abstract assessment of damage is vehemently opposed by some 114 when it comes to Austrian law; nonetheless, it has been explicitely recognised by positive law in the form of § 1332 ABGB and is also to be found in § 1315 (5) of the Austrian Draft as well as in Art 10:201 PETL.

It is certainly also worth noting that while in general only the subjective-concrete assessment of damage is supported in Germany115 and thus objective-abstract assessment

111On this Neuner R., Interesse und Vermögensschaden, AcP, 133, 1931, 277; Wilburg W., Zur Lehre von der Vorteilsausgleichung, Jehrings Jahrbücher für Dogmatik des bürgerlichen Rechts, 82, 1932, 51; Bydlinski F., Probleme der Schadensverursachung nach deutschem und österreichischem Recht, Stuttgart 1964, 29 f.; idem, System und Prinzipien des Privatrechts, Vienna 1996, 191 f.; Schiemann G., Argumente und Prinzipien bei der Fortbildung des Schadensrechts, Munich 1981, 205 ff.; Koziol H., Österreichisches Haftpflichtrecht, Vol. I, Vienna 1997, 3. ed., no. 1/18; Hager J., in Staudinger BGB, Berlin Bearbeitung 1999, Vor §§ 823 ff. no. 9; cf. also Stoll H., Haftungsfolgen im bürgerlichen Recht, Karlsruhe 1993, 194 ff. More recently, the notion of continuation of a right has been emphasised in particular by Dreier T., Kompensation und Prävention, Tübingen 2002, 144 f.; Gebauer M., Hypothetische Kausalität und Haftungsgrund, Tübingen 2007, 12, 101 ff., 221 ff., 256 ff.

112Bydlinski F., System und Prinzipien des Privatrechts, Vienna 1996, 191 f.

113Lange H., Schiemann G., Schadensersatz, Tübingen 2003, 3. ed., 251.

114Cf. Reischauer R., in Rummel P. (ed.), Kommentar zum ABGB, Vol. II/1, Vienna 2002, 3. ed., § 1332 no.17.

115See, for example, Oetker K., in MünchKomm BGB, Vol. II, Munich 2007, 5. ed., § 249 no.16 ff. with additional references.

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of damage is firmly rejected there,116 the damage is in fact objectively assessed in problematic cases, even though this is not recognised or at least not openly acknowledged.

A good example is provided by the compensation of the »loss in commercial value« (merkantiler Minderwert): this minimum value is based on the fact that in the market a car damaged in an accident is valued as worth less, even when it has been completely repaired and therefore without technical defect, than a car that has not been involved in any accident. Hence, it is not the value of use that is reduced but only the market value. If the interest in the car is calculated on a subjective basis, a disadvantage could only be established when the car is sold but not in the course of its use until only scrap value remains or at least up until the point when the loss in commercial value (merkantiler Minderwert) has decreased again to nothing. The BGH117 holds, however, that it is not decisive whether the loss in value has manifested in a sale of the car and takes the objective reduction of the market value as the sole basis. In truth, this is nothing other than an objective-abstract assessment of damage since only the market value is taken into account and not the subjective-concrete interest of the victim.118 If, moreover, the theoretical justification for this is that119 »after the repairs the victim has an asset which, if the market takes into account the loss in commercial value (merkantiler Minderwert), has already lost in value because this is determined solely by market criteria«, there is very clearly recognition of objective-abstract assessment of damage based on market value. The usual theoretical mislabelling should thus finally be abandoned.

The principle of continuation of a right does not apply when the damage to the victim consists in incurring a liability or having to expend costs; in both cases a compensation claim would not represent the continued effect of a damaged good.120 On the other hand, the objective-abstract assessment is not limited only to the property damage mentioned in § 1332 ABGB, in fact it is always applied pursuant to the basic principle when the protected right or legal good that is damaged has a market value. Therefore, for instance, a victim who has suffered a reduction of his working capacity

116Cf., for example, Lange H., Schiemann G., Schadensersatz, Tübingen 2003, 3. ed., 248: “Within the claim for compensation it is not any ‘objective’ value of the legal good at issue which is decisive but how the circumstance giving rise to liability has affected the assets of the person entitled to compensation.” Further 250 f.: “The general conclusion that the victim can under all circumstances seek some specific ordinary market value as minimum damage even when the specific damage event at the relevant time does not account for a corresponding difference in assets, would on the other hand contravene the ban on enrichment under the law of damages.”

117See the German case law since BGHZ 35, 396 = Juristenzeitung, 1967, 360 (Steindorff). For further details see Oetker K., in MünchKomm BGB, Vol. II, Munich 2007, 5. ed., § 249 no. 52 ff. See also Martens S., Zimmermann R., Collective Damage, in Winiger B., Koziol H., Koch B. A., Zimmermann R. (eds.), Digest of European Tort Law, Vol. II: Essential Cases on Damage, Berlin 2011, 2/24 no. 1 ff.

118T hus, rightly, Steindorff, Juristenzeitung, 1967, 360.

119Lange H., Schiemann G., Schadensersatz, Tübingen 2003, 3. ed., 266.

120Koziol H., Österreichisches Haftpflichtrecht, Vol. I, 1997, 3. ed., no. 2/66.

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to earn may be awarded an abstract annuity as compensation.121 On the other hand, when a person is killed, even the continuation of a right theory cannot lead to an objectively-abstract assessed compensation award,122 although the absolutely protected right to life has been violated.123 The approach fails here because life does not have any objectifiable pecuniary value in the sense that it is acquired or sold for money.124 Furthermore, concerns arise when it is proposed that when a person is killed a claim to compensation for the value125 of a person, which in any case is not measurable in money, or even just the value of their destroyed earning capacity, be recognised and deemed to be passed on to their heirs. Ability to earn is an asset but this is never included in the estate and can, accordingly, never be passed on to the heirs; instead the ability to earn expires with the person and thus cannot be inherited. If in cases of a killing triggering liability, a compensation claim in this respect was recognised and included in the estate as an ordinary pecuniary claim, in end effect a highly personal and thus non-inheritable good would be transformed to a non-personal and thus inheritable monetary claim solely so that the heirs obtain an asset. However, ultimately these heirs would be obtaining an asset that they would never have received had the pecuniary good not been destroyed. Hence, recognising such a compensation claim when someone is killed would not have significant regard to the fact that ability to earn is inseparable from the person and thus ends with said person.126 The same grounds speak even more strongly against awarding a compensation claim for destroyed life, as in contrast to the ability to earn, such is not a pecuniary good and can only be due to a certain person because it is highly personal and thus by its very nature is not transferable.

121OGH 2 Ob 143/03y in SZ 2003/106; Bydlinski F., Probleme der Schadensverursachung nach deutschem und österreichischem Recht, Stuttgart 1964, 50 ff.; Danzl K.-H., in Koziol H., Bydlinski P., Bollenberger R. (eds.), Kurzkommentar zum ABGB, Vienna/New York 2010, 3. ed., § 1325 no. 21.

122On this Koziol H., Die Tötung im Schadenersatzrecht, in Koziol H., Spier J. (eds.), Liber Amicorum Pierre Widmer, Vienna/New York 2003, 203 ff.; agreeing with this Koch B. A., Der Preis des Tötens, in Die soziale Funktion des Privatrechts. Festschrift für Heinz Barta zum 65. Geburtstag, Vienna 2009, 188.

123For which the supporters of the law and economics school, stressing the notion of deterrence, see the generation of a duty to compensate as urgently necessary, see Schäfer H.-B., Ott C., The Economic Analysis of Civil Law, London 2004, 235 ff.

124See Neuner R., Interesse und Vermögensschaden, AcP 133, 1931, 306.

125On the completely dissatisfactory attempts of law and economics see Bydlinski F., Die „Umrechnung“ immaterieller Schäden in Geld, in: Koziol H., Spier J. (eds.), Liber Amicorum for Pierre Widmer, Vienna/New York 2003, 43 ff.

126T his is also an argument against the Japanese solution of recognising a claim on behalf of the deceased to future lost income, which is passed on to his heirs. See on this Marutschke, H.-P., Einführung in das japanische Recht, Munich 2010, 2. ed., 171 f.; Nitta, Die Berechnung des Schadens beim Unfalltod eines minderjährigen Kindes, in Caemmerer von E., Müller-Freienfels W., Stoll H. (eds.), Recht in Japan: Berichte über Entwicklungen und Tendenzen im japanischen Recht, Frankfurt am Main 1998, 80 ff., as well as against the related theories put forward by Pfeifer G., Schadensfall Tod: Zur Ersatzfähigkeit entgangenen Gewinns bei Tötungsdelikten, AcP, 205, 2005, 807 ff.

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