Экзамен зачет учебный год 2023 / Koziol_BasicQuestions_Germanic

preventing individual, socially undesirable behaviour which results in such 242; therefore criminal law can also provide for the necessary protection where tort law cannot be applied due to lack of recoverable damage, for example, when a person is killed without leaving any surviving dependants ( cf no 2 / 51 ) or very generally also when unsuccessful attempts are made this is punishable.

Punishing those who behave in a manner damaging to society is intended to prevent a repetition of such acts by the same perpetrators ( special deterrence ) 243. A further main aim of criminal law and an effect of such specially deterrent measures is to increase compliance by the public with the threat of punishment and its execution ( general deterrence ) 244 and besides this to preserve and strengthen law as the essential, fundamental order of society 245. Although punishment is an evil and expresses reproach 246, prevailing opinion today is that it has no function of revenge 247, even though the notion of revenge is not negated by all modern criminal law theories 248.

The result of the different functions of the law of tort and criminal law is 2 / 85 that liability and punishment must essentially be considered as separate from

each other. Nonetheless, a certain inter-dependence does consist in the fact, on the one hand, that criminal law rules are deemed protective laws and thus may be of importance for the assessment of liability under the law of tort ( § 823 ( [ 2 ] BGB; § 1311 ABGB ); on the other hand, the punishability of an action may be cancelled if the damage caused has been repaired by the damaging party before the authorities took action or at least when an obligation in this respect is founded ( cf for example §§ 167 StGB, 204 StPO ). Hence, in certain closely defined cases, it is assumed that the voluntary willingness to compensate damage negates the necessity for a penalty.

Due to the overlapping of the functions of the law of tort with those of criminal law, however, it must be noted once again that criminal law not only serves the protection of goods allocated to the individual but also the protection of society as a whole against interferences and risks.

242Von Bar, Deliktsrecht I no 600.

243Fuchs, Strafrecht AT7 Z 2 no 7; Gropp, Strafrecht AT 35 f; Kienapfel / Höpfel, Strafrecht AT13 2 / 11 ff; Roxin, Strafrecht AT4 § 3 A no 11 ff; Triffterer, Strafrecht AT2 12 ff; Wessels / Beulke, Strafrecht AT39 no 12a.

244Fuchs, Strafrecht AT7 Z 2 no 6; Gropp, Strafrecht AT 34 f; Kienapfel / Höpfel, Strafrecht AT13 2 / 14 ff; Kindhäuser, Strafrecht AT 39 f; Roxin, Strafrecht AT4 § 3 A no 21 ff; Triffterer, Strafrecht AT2 12; Wessels / Beulke, Strafrecht AT39 no 12a.

245Kienapfel / Höpfel, Strafrecht AT13 2 / 18 ff; Roxin, Strafrecht AT4 § 3 A no 1; Triffterer, Strafrecht AT2 14; Wessels / Beulke, Strafrecht AT39 no 6 and 12a; differentiating Gropp, Strafrecht AT 25.

246Fuchs, Strafrecht AT7 Z 2 no 9; Kienapfel / Höpfel, Strafrecht AT13 1 / 7 ff.

247Fuchs, Strafrecht AT7 Z 2 no 9; Kienapfel / Höpfel, Strafrecht AT13 2 / 17; Roxin, Strafrecht AT4 § 3 A no 8; Triffterer, Strafrecht AT2 13 f; a summary of older views is offered by Roxin, Strafrecht AT4 § 3 A no 2 ff.

248Gropp, Strafrecht AT 37; Kindhäuser, Strafrecht AT 40; Wessels / Beulke, Strafrecht AT39 no 12a.

XV.  Concluding remarks

A.Use of legal protection mechanisms in a manner contrary to their function

2 / 86 Linking clearly distinguishable legal consequences to significantly different prerequisites applies at least with respect to the core areas of the legal fields addressed. Nonetheless, the awareness of the necessity for certain prerequisites to be appropriately linked to certain legal consequences appears to be diminishing 249. This is revealed, for instance, in the fact that the disgorgement of unjust profits with the help of damages claims is considered theoretically possible 250 or that » punitive damages « are advocated ( see above no 2 / 55 and below 3 / 12 ff ). Moreover, the prerequisites for separate legal remedies are sometimes converged but the differences in legal consequences remain unaffected; or vice versa the legal consequences are harmonised although the prerequisites are different. At this point some examples will be given in order to illustrate this.

2 / 87 In respect of the preventive injunction, for example, it is generally emphasised that it merely requires the endangerment of an area protected by the legal system, ie simply the fulfilment of the factual elements of the offence ( more on this above no 2 / 7 ). Neither is any imminent specific damage or enrichment necessary, the simple interference with a legal interest allocated to another and thus a disadvantage or enrichment threatened in a very abstract, objective manner suffices.

In particular in connection with the preventive injunction against a threatened impairment of a mortgage by renting the land under mortgage, however – as explained above ( no 2 / 10 ) – Austrian law requires objective negligence from some and frequently even fault. The prerequisites for a preventive injunction are thus approximated to those for a damages claim. Hinteregger 251 even considers that the

249At this point it could be pointed out that in Austria bankruptcy avoidance due to the disadvantageousness of the transaction ( § 31 sec 1 KO ) leads to consequences under the law of damages without correspondingly strict prerequisites; cf on this P. Doralt, Anmerkungen zu OGH 1 Ob 686 / 88 in ÖBA 1989, 1016 f; Koziol, Grundlagen und Streitfragen der Gläubigeranfechtung ( 1991 ) 94; Bollenberger, Der erforderliche Zusammenhang zwischen Haftungsgrund und Haftungsumfang beim revolvierenden Kredit als nachteiliges Rechtsgeschäft ( § 31 Abs 1 Z 2 zweiter Fall KO ), zugleich eine Besprechung der Entscheidung OGH 17. 11. 2004, 9 Ob 24 / 04a, ÖBA 2005, 683 ff.

250Cf Micklitz / Stadler, Unrechtsgewinnabschöpfung 79. In another place they mention, however, that the profit gained by the interferer can merely offer a starting point for the assessment of the disadvantage that accrued to the victim ( 58 ). Moreover, they concede ( 125 ) that a claim directed at disgorgement of profit that requires unlawfulness and fault is a sui generis claim.

251Hinteregger, Rechte des Pfandgläubigers bei Entwertung der Pfandliegenschaft durch Vermietung, ÖBA 2001, 450 f.

mortgagor should be accorded no in rem rights of defence but only claims for damages.

Moreover, Austrian and German court decisions have rejected actions for preventive injunctions against persons who do not have the capacity to commit torts ( see above no 2 / 8 FN 13 ), thus advocating closer convergence with the law of tort by taking subjective fault as a basis.

The substantive prerequisites for reparative injunctions on the other hand, are 2 / 88 controversial from the start. Widespread opinion considers them, however, to be

largely the same as those for preventive injunctions: reparative injunctions do not require any breach of duty but instead are based on the result, specifically the interference with a protected legal position, meaning that mere fulfilment of the factual elements of the offence is required, so the general view goes ( see above no 2 / 16 ). Furthermore, the legal consequence, namely the distinction between such reparation and restitution in kind under the law of tort, also presents difficulties.

As discussed above, this should be distinguished as follows: insofar as the reparative injunction only requires the disturber to tolerate the removal of the source of interference by the disturbed party, so that the disturber is in fact merely required to desist from resistance and thus the action is for nothing other than a preventive injunction, then as in such case only the fulfilment of the factual elements of the offence must be required. However, if the disturber is required actively to remove the interference, so that he must incur efforts or costs in so doing, it must be seen that this is a question of who should bear the disadvantages. When establishing the appropriate prerequisites for requiring a party to bear the disadvantages and thus granting a reparative injunction, it must be considered on the one hand that the legal consequences are more serious than in the case of a preventive injunction, since the respondent is required actively to undertake something involving costs to him. On the other hand, the legal consequences are in principle less far-reaching than in the case of actions for damages as the disturber must only bear the costs of removing the source of interference and must not compensate any further damage. Thus, it would seem appropriate to set the prerequisites so that they lie between those for preventive injunctions and those for damages claims. Hence, the fact that the disturber’s actions fulfilled the factual elements of the offence should not suffice on its own, but on the other hand fault should not be required. Instead, objective negligence on the part of the disturber would seem both necessary and sufficient. Besides this, in parallel to the law of tort, vicarious liability and strict liability should also be recognised when it comes to reparative injunctions. Just as less strict prerequisites in relation to behaviour are sufficient in the case of reparative injunctions due to the less severe legal consequences, however, a lesser degree of dangerousness must also be sufficient, so that not only the abstract risk of frequent or more severe damage

even to a very slight degree is enough but also the specific dangerousness due to a defect 252.

As far as the difficulties in distinguishing between removal of the interference and damages are concerned, the approach taken by Jabornegg / Strasser, based on whether individualisaton is possible, is persuasive. Moreover, the borderline can be relaxed and thus be less stringent: if there are serious grounds for liability, for example grave breach of duty, the reparative injunction may be extended further and thus converge with the claim for damages; if the grounds for liability are weak, the borderline should be drawn more restrictively.

2 / 89 Finally, the Caroline cases provide a hotly disputed example of the blurred lines between claims for damages and for unjust enrichment; in these cases the German BGH 253 assessed the claim for damages, without regard to the disadvantage suffered respective the unjust enrichment gained, for deterrent purposes. Thus, a claim was granted, which – apart from the causation of damage – set out the prerequisites of the law of tort, but in substance was a claim for unjust enrichment.

B. The need for a consistent overall system

2 / 90 The aim of the short overview of the legal consequences above is to try and fit the law on damages better into an overall system, based on understandable value judgements, of available legal protection options, thus allocating the appropriate place to the law on damages within the overall legal system. This classification could provide guidance on how the existing rules on damages should best be interpreted in Germany and Austria, how the law on damages should be developed in the future and to what extent some of the functions attributed to it today could appropriately be taken over by other areas of laws – already existing or to still to be developed.

2 / 91 The purpose of the overview of the different existing or debated protection mechanisms is thus an attempt to arrive at a better understanding of the functions attributed to individual rules. The bird’s eye picture shows up more clearly which functions should be attributed to each area of rules according to its nature, whether there are currently deficiencies in how some needs for protection are covered and thus whether certain areas should be allocated additional tasks or new protection systems should be developed.

252On this Koziol, Gedanken zum privatrechtlichen System des Rechtsgüterschutzes, Canaris-FS ( 2007 ) 649 f.

253BGHZ 128, 1 = NJW 1995, 861; NJW 1996, 984 f.

C. Observation of the structural principles of private law and public law

254F. Bydlinski, System und Prinzipien 92 ff; idem, Die Suche nach der Mitte als Daueraufgabe der Privatrechtswissenschaft, AcP 204 ( 2004 ) 341 ff; idem, Die Maxime beidseitiger Rechtfertigung im Privatrecht, Koziol-FS 1355 ff. The principle of bilateral justification worked out by F. Bydlinski is accepted among others by Canaris, Grundstrukturen des deutschen Deliktsrechts, VersR 2005, 579; Koziol, Grundgedanken, Grundnorm, Schaden und geschützte Interessen, in: Griss / Kathrein / Koziol, Entwurf 32; H.P. Walter, Recht und Rechtfertigung – Zur Problematik einseitigen Privatrechts, Gauch-FS ( 2004 ) 302 ff. Rejecting this, however, G. Wagner, Präventivschadensersatz im Kontinental-Europäischen Privatrecht, Koziol-FS 932 f.

no 2 / 55 ff ), but which despite the harmless sounding name do not require the existence of any corresponding damage and thus have a purely penal nature. However, by principle it is public law which is responsible for penalties, in particular criminal law including administrative penal law.

The fact that the law of tort does not, or at least not primarily, have a public law penal function makes it easier, on the other hand, to depart from the subjective standard of blame traditionally required for penalties, ie fault, and to regard other grounds for liability as equally valid, for example being in control of a source of danger or at least under certain circumstances to take a less stringent basis for liability by applying an objective standard of fault, for example due to the notion of guarantee when the duty to fulfil contracts is breached or in the case of professional experts ( see below no 6 / 87 ff ).

2 / 94 Furthermore, it becomes apparent that public law – in pursuance of the notion of solidarity effective within the community – is aimed at securing the livelihood and existence of individuals, in particular in the context relevant here by means of social security law and the provisions on the indemnification of victims of catastrophes and crimes. Hence, there is no necessity to over-burden the law of tort with this task, which is foreign to its nature, and thus to alienate it from its general principles. The existence of social security law, on the other hand and quite apart from the issue of redress rights, could be relevant to the law on damages to the extent that it may reduce the need for protection under the law on damages.

D.Taking into account the relationship between prerequisites and legal consequences

2 / 95 However, even within the private law system of legal consequences, the functions of the individual protection mechanisms become more obvious when seen in overview. Thus, it becomes clear that the preventive injunction with its comparatively low prerequisites may not be stretched so far as to serve the compensation of damage and otherwise would undermine the substantially stricter law of damages. At the least, such convergence of the legal consequences would require convergence likewise with the prerequisites applicable under the law of damages. Vice versa, it is no harm on the other hand, if the stricter law of tort, for instance by granting restitution in kind, grants nothing different to a reparative injunction, as is the case for example when it comes to the revocation of defamatory statements under § 1330 ( 2 ) ABGB: this may not seem very logical but does not undermine in any way those rules which grant reparative injunctions even under less strict prerequisites. Hence, there is no objective reason why the preventive injunction which requires less strict prerequisites should be refused due to the claim for damages.

In any case, more regard should be had to how prerequisites are matched to legal consequences, above all to the fact that more onerous legal consequences call for stricter prerequisites.

E.Taking into account the appropriacy of tasks to the nature

of the instrument, the interplay of different protection mechanisms and the further development of borderline areas

255On this Koziol, Die Bereicherung des Schädigers als schadenersatzrechtliches Zurechnungselement ? F. Bydlinski-FS ( 2002 ) 175 ff.

avoid the increasing misuse of a legal concept in order to attain a desired goal, in that objectively justified and system-appropriate prerequisites are elaborated and the corresponding appropriate legal consequences provided for. Thus, the aim is to avoid the rather conceptual-jurisprudential ( begriffsjuristische ) arrangement of claims in seemingly defined categories; transition areas and new instruments should provide support.

In this respect it must be borne in mind not only generally – as already mentioned – that the prerequisites must fit the legal consequences, and in this context that the graver the legal consequences the stricter the prerequisites must be; more importantly prerequisites and legal consequences must also be in harmony with the fundamental structures and aims of the individual mechanisms for legal protection. Thus, claims for damages should not be deployed in order to disgorge unjust enrichments or to impose pure penalties. Any gaps in protection should instead be closed in a manner consistent with the overall system by recognising the transitions between today’s protection systems, in which prerequisites and legal consequences may converge. In this manner, claims for unjust enrichment may apply regardless of the lapse of the unjust enrichment by the application of liability grounds deriving from the law of tort and, on the other hand, damages claims may be cautiously expanded by taking into account the advantage gained by the damaging party in the context of the compensatory purpose. This shows that the existing legal remedies can be developed in harmony with the overall system, but certainly not by taking on elements foreign to the system, so that the gaps in legal protection may be closed within the framework of an overall system for the protection of legal goods with consistent values and hence, a legal system serving the notion of fairness as such may be accomplished.

75

Chapter 3

The tasks of tort law

I.  Compensatory function

compensation of the damage suffered and, moreover, the degree of dangerousness is a criterion for the liability of the damage caused, substantially equivalent to that of fault.

3 / 2 The scepticism expressed, for instance, by Kötz 5 as regards the compensatory notion seems to be primarily based on the fact that he expects this concept to clarify issues which it is not intended to clarify and indeed understandably cannot clarify. Specifically, his criticism is based on the argument that compensation of damage is by no means always required and that this principle does not offer much insight into the question of what goals the legislator pursued in selecting the special grounds that lead to compensation of damage. The elaboration of the compensatory notion is not, however, aimed at delivering insights into the grounds for liability but merely to clarify what function the right to compensation should have, if the criteria for liability are met 6. The compensatory notion clearly expresses the purpose of tort law 7, provides a guideline for the scope of the claim for damages and thus excludes the integration, for example, of punitive damages ( no 1 / 23 and 2 / 55 ff ) or the disgorgement of an enrichment within the framework of the law of damages – a finding that if observed could have provided the means to avoid many a wrong turn and that underlines the importance of emphasising this notion.

3 / 3 The compensatory function is also decisive in respect of the field of nonpecuniary damage 8 according to persuasive opinion 9 and in precisely this sense Art 10 : 301 PETL speaks very clearly of » compensation of non-pecuniary damage «. In

5Ziele des Haftungsrechts, Steindorff-FS ( 1990 ) 644 f. Cf also Möller, Das Präventionsprinzip des Schadensrechts ( 2006 ) 247 ff; Schiemann, Argumente und Prinzipien bei der Fortbildung des Schadensrechts ( 1981 ) 185 ff; Visscher, Economic Analysis of Punitive Damages, in: Koziol / Wilcox, Punitive Damages 6 and 57; G. Wagner in MünchKomm, BGB V5 Vor § 823 no 38 f; G. Wagner,

Prävention und Verhaltenssteuerung durch Privatrecht – Anmaßung oder legitime Aufgabe ? AcP 206 ( 2006 ) 453 ff.

6Thus, also F. Bydlinski, System und Prinzipien 187 f; F. Bydlinski, Causation as a Legal Phenome-

9F. Bydlinski, Der Ersatz ideellen Schadens als sachliches und methodisches Problem, JBl 1965, 253 f; Karner, Ersatz ideeller Schäden 88 f, 132 ff; Köndgen, Haftpflichtfunktionen und Immaterial­ schaden ( 1976 ) 84 ff; E. Lorenz, Immaterieller Schaden und » billige Entschädigung in Geld «, ( 1981 ) 95 ff. However, see Deutsch, Haftungsrecht2 no 904 ff; Oetker in MünchKomm, BGB II5 § 253 no 13; Strasser, Der immaterieller Schaden im österreichischen Recht ( 1964 ) 16 ff. From a comparative perspective on this complex of problems Brüggemeier, Prinzipien des Haftungsrechts­ ( 1999 ) 189 ff; B.A. Koch / Koziol, Comparative Analysis, in: B.A. Koch / Koziol, Personal Injury 420, 424 f; W.V.H. Rogers, Comparative Report of a Project Carried Out by the European Centre of Tort and Insurance Law, in: W.V.H. Rogers, Non-Pecuniary Loss 251 ff.