Экзамен зачет учебный год 2023 / Koziol_BasicQuestions_Germanic

74J. Hager in Staudinger, BGB1999 Vor §§ 823 ff no 16.

75Judge Learned Hand in United States v. Carroll Towing Co, 159 F.2d 169 ( 2d Cir. 1947 ).

76Thus, however, for instance Schäfer / Müller-Langer in: Faure, Tort Law 10. See, on the other hand, the concerns openly addressed by Faure, Impact of Behavioural Law and Economics 15 ff, 22 ff.

77This is pointed out by G. Wagner in MünchKomm, BGB V5 Vor § 823 no 60, who nonetheless proceeds on the basis that economic theory integrates these behavioural anomalies and will be able to process them more productively in more complex models.

78This is pointed out, for example, by F. Bydlinski, Fundamentale Rechtsgrundsätze 285.

79In this sense also Wilhelmi, Risikoschutz 26 with additional references; cf also Spickhoff in Soergel BGB XII13 Vor § 823 no 33.

80F. Bydlinski, Fundamentale Rechtsgrundsätze 285.

concern the fundamental question of whether protection is to be granted at all and ultimately this problem is solved by lawyers in a manner largely conforming to the system. It is not the value of the non-pecuniary good which is compensated but instead – in simplified terms – the award made is intended to enable the victim to enjoy appropriate » positive feelings « in compensation for the negative feelings suffered 81.

Besides this, however, economic analysis wants to resolve the fundamental issue of whether and when non-pecuniary goods should be granted protection against interference in the first place by evaluation of the good itself. Accordingly,

Kötz 82 for instance contends that the law and economics theory could show that prevention of accidents only makes sense and consequently an incentive to take measures to prevent an accident should only be created provided the costs of the measures to prevent the accident are lower than the costs of the accident avoided. Hence, in his opinion this economic evaluation is of pre-eminent significance even in respect of unlawfulness and thus in relation to the existence of claims for damages. If regard is had to the results of the economic analysis, the problems involved in such evaluation are obvious. Ott / Schäfer 83, for instance, want to deduce the value of life from risk premiums actually paid. Taking into account the readiness to pay for precautions promoting security, they come to estimated values for life lying between 11 and 809 times the social product per head. Evaluation with this degree of subjective discretion is not appropriate and indeed amounts to pure arbitrariness 84.

3 / 22 With respect to the above-mentioned theory that incentives to take measures to avoid accidents should only be created provided the costs of preventing accidents are less that the costs of the accident, it must moreover be objected 85 that it would of course be out of the question to limit, for instance, the civil law protection of old age pensioners because their death would be cheaper than preventive measures to avoid the damage. This problem cannot be eliminated by discarding the economic value of a person, which would often be zero in the case of a pensioner, as a basis and instead basing the evaluation on how much someone’s life is worth to him personally, ie how much he is willing to pay to keep it 86.

81On this below no 5 / 10 ff.

82Ziele des Haftungsrechts, Steindorff-FS ( 1990 ) 647. Cf also Schäfer / Müller-Langer, Strict liability versus negligence, in: Faure, Tort Law 22 f; G. Wagner in MünchKomm, BGB V5 Vor § 823 no 61.

83Schmerzensgeld bei Körperverletzung, JZ 1990, 563. Cf also the assessment methods in Visscher, Tort Damages, in: Faure, Tort Law 160 ff; further Bost, Effiziente Verhaltenssteuerung 231 ff.

84Rightly critical, therefore, F. Bydlinski, Die » Umrechnung « immaterieller Schäden in Geld, in: Liber Amicorum for Pierre Widmer ( 2003 ) 43 ff.

85Koziol, Haftpflichtrecht I3 no 1 / 10.

86The problem of how this amount should be determined after the death of the victim will regularly crop up. Moreover, the question is why everyone should be allowed to determine his » worth « as he pleases; in the case of economic assets this is certainly not permissible.

Apart from the fact that the amount an individual is willing to pay for his life greatly depends on his financial situation and that protection of life would have to be adapted to the paying power of the person at risk, it may be assumed that even this subjective amount is typically low in the case of elderly pensioners since their » remaining term « is short. In the case of people suffering from infirmity or depression or people who have lost their zest for living, the amount might be close to nothing. Furthermore, even if the value of a person still active in working life was deemed high, it could nonetheless turn out that another person would derive an even greater economic benefit from the first person’s demise, for example if one entrepreneur could gain substantial profits from the death of a rival. Should the duties of care towards this rival then really be eliminated ? Even to ask the question is to negate it 87. This is a matter of course for lawyers because some goods, in particular life and health, cannot be disposed of, not even by the individual to whom they belong. This is now also recognised by the economic analysis of law 88, but this school has difficulty in justifying this standpoint within the logic of its system 89 since it requires a departure from economic principles and consideration of the liberty of others, ie the person at risk 90.

Parallel problems emerge ultimately not only with regard to the fundamen- 3 / 23 tal personality rights but also in a more diluted form as regards pecuniary assets.

As already emphasised by Calabresi 91, rules on indemnification are not intended simply to forbid conduct likely to cause damage but to allow the actor a choice as to whether or not he wishes to engage in the activity in question. He should engage in the activity if the benefit to be expected is greater than the harm to be anticipated. In end effect, however, this means that there is no ban on interfering with third-party goods if such corresponding benefit beckons. This becomes particularly clear when it is premised that decisions should » be taken so as to achieve the allocation of resources that would arise if the same person received both the disadvantage and the advantage and this person made the decision in question « 92.

This exclusive reference to the ratio of costs and benefits in the interest of the general good and the dismissal of the legal allocation of the goods to another person unavoidably leads to a far-reaching disregard for the allocation of goods under

87On this in principle Fezer, Nochmals: Kritik an der ökonomischen Analyse des Rechts, JZ 1988, 223 ff.

88See Eidenmüller, Effizienz als Rechtsprinzip ( 1995 ) 363 ff.

89See on this Eidenmüller, Effizienz 207 ff, 480 ff.

90Eidenmüller, Effizienz 350 ff; Mathis, Effizienz statt Gerechtigkeit ( 2004 ) 126 ff, with reference to

Rawls and Mill.

91Calabresi, The Decision for Accidents, 78 Harv L Rev ( 1975 ) 715 ff. On this Taupitz, AcP 196 ( 1996 ) 146 f.

92Schäfer / Ott, Lehrbuch der Ökonomischen Analyse des Zivilrechts2 ( 1995 ) 32 f. Cf also Adams, Ökonomische Analyse 165.

the legal system 93: if the costs of avoiding the damage or society’s gain from the interference with third-party rights are greater than the damage sustained by the owner of such, then according to the economic analysis of law, the interference with third-party property is permissible 94, and there is no necessity for the procedural and substantive law restrictions applicable in the case of dispossessions or consideration of the common good. Allowing interference with third-party property because of greater profits would mean a negation of property, indeed of all subjective rights, to the extent that the owner is deprived of defensive rights and the decision on how to use his property 95.

3 / 24 But also apart from this: even if third-party goods must be respected according to the principles of the economic analysis of law, substantial uncertainty remains as regards the definition of the duties of conduct in specific cases. Tau­ pitz 96 showed this very vividly using the example of the German game fencing to protect wildlife case 97. It does not seem that arguments sufficiently precise to persuade lawyers 98 and thus facilitate the desired predictability and transparency of decisions can be achieved by means of the economic analysis of law.

3 / 25 Ultimately, it is hard to dismiss the impression that the economic analysis of law suffers from a certain internal conflict, connected with its basic ex ante perspective, which it juxtaposes to the ex post approach of tort law 99. In this vein Boccara 100, for instance, writes: » On the one hand, economists look at the tort problem from an ex ante perspective whereas, on the other hand, lawyers look at the tort problem from an ex post perspective. Looking at the tort problem from an ex ante perspective means to establish incentives to doctors in order to prevent damage while looking at the tort problem from an ex post perspective means determining to what extent a victim can recover. The dichotomy between ex ante-ex post leads to the two main functions of the civil liability: the deterrent function and the compensatory function.«

It seems the solution offered by the economists is at least less than ideal 101 when they nonetheless deploy the ex post oriented law of damages approach for

93Cf Wilhelmi, Risikoschutz 26.

94Cf Schäfer / Ott, Lehrbuch der Ökonomischen Analyse des Zivilrechts4 ( 2005 ) 160; Schäfer / MüllerLanger, in: Faure, Tort Law 8; cf also de Mot, Pure Economic Loss, in: Faure, Tort Law 204.

95See, for instance, Schäfer / Müller-Langer in: Faure, Tort Law 7.

96AcP 196 ( 1996 ) 156 – 163.

97BGH in BGHZ 108, 273. On this also Schäfer / Ott, Ökonomische Analyse4 187 ff.

98Bost, Effiziente Verhaltenssteuerung 258 f, still extols by contrast in recent times the » cogency and precision « of the economics and law theory, as well as its » mathematically precise analysis «.

99On this Eidenmüller, Effizienz 400 ff.

100See, for instance, Boccara, Medical Malpractice, in: Faure, Tort Law 344 f.

101Against this objection G. Wagner, Präventivschadensersatz im Kontinental-Europäischen Privat­ recht, Koziol-FS 934 f, however, at least in the case of intentional infliction of damage his arguments do not hold true.

tim receives more than indemnification of the damage he suffered, while there may be reasons to impose such payment duties on the damaging party, there can certainly be no justification for why exactly the victim receives such payments.

102Visscher, Tort Damages, in: Faure, Tort Law 167; G. Wagner, AcP 206 ( 2006 ) 451 ff; idem, Neue Perspektiven im Schadensersatzrecht – Kommerzialisierung, Strafschadensersatz, Kollektivschaden, Gutachten A zum 66. Deutschen Juristentag 2006 ( 2006 ) 98 ff.

103Polinsky / Shavell, Punitive Damages, in: Faure, Tort Law 228 ff; Schäfer / Müller-Langer, Strict Liability Versus Negligence, in: Faure, Tort Law 12 f; Visscher in: Faure, Tort Law 166 ff.

104Visscher in: Faure, Tort Law 170 f.

105Schäfer / Müller-Langer in: Faure, Tort Law 11; Visscher in: Faure, Tort Law 155 f.

If, on the other hand, the victim is not awarded full compensation because this is not required for the purposes of deterrence, this would contravene the notion of commutative justice that has been accepted for millenia. Neither would it be possible adequately to justify why the specific victim – who could not prevent the damage, which consequently cannot be imputed to him – should have to bear part of the damage himself merely because potential tortfeasors do not require any additional incentive to conduct themselves duly and properly in the future. In the relationship between damaging party and victim, which is the decisive relationship from the perspective of private law, all arguments speak in favour of having the damaging party bear the damage and an individual cannot be expected to bear the damage for general social reasons. Imposing such a burden on the individual would undoubtedly also contravene the principle of equal treatment.

3 / 28 Economists have a tendency to meet all these concerns with the argument that the primary aim of tort law is quite simply deterrence and not compensation 106. However, in so doing they expose themselves, inter alia, to the critique that tort law in its specific form today in all legal systems primarily serves the end of compensation, and thus the economic analysis of law comes into conflict with positive law and legislative intent. Moreover, any redesign of tort law as an instrument primarily aimed at deterrence would open up a regulatory gap: as legal history shows, there is a need for rules that are primarily aimed at the compensation of damage. Hence, it would not seem wise to alienate present-day tort law, aimed as it is at compensation of damage, from the task it has served hitherto, thus creating the necessity for a new branch of law dealing with the compensation of damage, which would correspond essentially to the currently existing laws.

3 / 29 Despite all these objections, which the economic analysis of law may be able to clear up in the future, the focus on economic considerations deserves significant credit for having forcefully brought into focus the expediency principle, which can play a role, not on its own, but certainly besides other, fundamental and higher-ranking fairness criteria 107.

106G. Wagner, AcP 206 ( 2006 ) 451 ff; Visscher in: Koziol / Wilcox, Punitive Damages 222 ff.

107F. Bydlinski, Fundamentale Rechtsgrundsätze 289 f.

93

Chapter 4

The area between tort

and breach of an obligation

I.  Tort, breach of contract and the interim area

1On this in detail Krebs, Sonderverbindung und außerdeliktische Schutzpflichten ( 2000 ) 47 ff; Im­- menhauser,­ Das Dogma von Vertrag und Delikt ( 2006 ).

2See above all Canaris, Schutzgesetz – Verkehrspflichten – Schutzpflichten, Larenz-FS ( 1983 ) 27 ff; Medicus, Die culpa in contrahendo zwischen Vertrag und Delikt, Keller-FS ( 1989 ) 205; Koziol, Delikt, Verletzung von Schuldverhältnissen und Zwischenbereich, JBl 1994, 209; Krebs,

Sonderverbindung 555 ff.

3See on this, von Bar, Deliktsrecht I no 414, 459 ff; Brieskorn, Vertragshaftung und responsabilité contractuelle ( 2010 ) 58 ff; Krebs, Sonderverbindung 28 ff, 47 ff.

in relation to the non-fulfilment of the obligation. Furthermore, the principal – as in German and Swiss law – has comprehensive vicarious liability for negligent conduct on the part of auxiliaries he deploys to fulfil his duties to perform obligations ( § 1313 a ABGB ), while vicarious liability for auxiliaries is very restricted in the field of tort ( § 1315 ABGB ).

Moreover, with respect to the area of unlawfulness, the acknowledgment of the 4 / 5 fluid transition area between tort and breach of an obligation is important above

all for two reasons: firstly, in the field of tort, duties to behave ( Verhaltenspflichten ) in such a manner as to protect the purely pecuniary interests of third parties exist only within very narrow limits 7; those who have entered into obligations with a partner, however, also have far-reaching duties to take care in relation to the pure pecuniary interests of such parties. Secondly, those who have entered into obligations are subject to more comprehensive and stricter duties of care. They must in particular also take action in order to avert damage being suffered by the respective obligee, eg by providing information and warnings.

The reasons for the different levels of protection are manifold. Insofar as the protection of pure economic interests is concerned, the main reason is that the freedom of individuals to act would be unreasonably restricted if there was comprehensive protection for economic interests under the law of tort because each and every case of damage would lead to a completely unforeseeable increase in the number of those entitled to seek compensation and thus to an incalculable risk in relation to every action taken 8. Equally, freedom of movement would be severely limited by comprehensive duties to actively avert damage to everybody in general. Furthermore, it must be taken into consideration that someone who enters into an obligation towards another has great influence not only on the legal goods but also on the pure economic interests of such other person 9. Such greater influence, in other words also greater risk which may be posed, calls for increased duties of care. Ultimately, in the context of obligations based on legal transactions, it is significant that both parties are pursuing their own business interests by means of the contract 10. If other people or their interests are exposed to greater risk in the pursuance of someone’s business interests, it is reasonable to impose

7On this in more detail Koziol, Schadenersatz für reine Vermögensschäden, JBl 2004, 274 ff, and below no 6 / 48.

8See on this also Krebs, Sonderverbindung 78 ff, 213 f; further Picker, Positive Forderungsverlet-

zung und culpa in contrahendo – Zur Problematik der Haftung » zwischen « Vertrag und Delikt, AcP 183 ( 1983 ) 476 ff; idem, Vertragliche und deliktische Schadenshaftung, JZ 1987, 1052 ff, who, however, over-emphasises this notion of restricted liability insofar as he neglects the further grounds for different liability.

9Krebs, Sonderverbindung 212 f, 263.

10Cf Welser, Vertretung ohne Vollmacht ( 1970 ) 76 f; F. Bydlinski, Zur Haftung der Dienstleistungsberufe in Österreich und nach dem EG-Richtlinienvorschlag, JBl 1992, 345.