Экзамен зачет учебный год 2023 / Koziol_BasicQuestions_Germanic

but to goods such as life, health and property that also enjoy absolute protection under tort is no argument against increasing protection in the context of a special relationship 20: in the area of tort there are only very limited duties to actively do something, which nonetheless are of decisive importance when it comes to joint undertakings such as mountain hiking, and which may be deduced from the meaning and purpose of the special relationship at issue. Moreover, at stake in this respect are not only minor injuries that ought to be avoided. Ultimately, the counterargument that those involved do not intend to create any such judicial format cannot prevail 21: the legal system often imposes duties of ( special ) care that were not considered and thus not desired by the parties but are nonetheless appropriate in the light of the interests involved and therefore supplemented by the legal system.

If the interests concerned in the interim zone are such that, on the one hand, 4 / 8 some value judgements relevant in the field of tort, and on the other hand, some

basic principles decisive in the field of contract, are applicable, it would not be in line with the law if this fact were disregarded and only the rules applicable in tort or alternatively those applicable under contract law were applied. The only type of solution in harmony with the legal value judgements would be to apply the rules of one or other core area in the interim area in full or to combine the rules of both according to whether the decisive basic principles apply. In the following pages, some groups of case will be elaborated as examples; it must be clearly emphasised that the aim thereby is not the formation of rigid, conclusive categories.

part of the donor only in the case of gross negligence; although Austrian law contains no such explicit provision, it is assumed that similar applies 23. Nonetheless, it would be more correct to proceed on the basis that the objective duties of care are reduced 24, albeit only insofar as these affect the fulfilment of the agreement to transfer ownership ( Schenkungsvertrag ) but not in relation to the protection of absolutely protected interests of the donee 25. Furthermore, the fact of nonremuneration is an argument that neither the burden of proof rule under § 1298 ABGB nor the stricter rule on vicarious liability for auxiliaries under § 1313 a ABGB should apply 26.

4 / 10 Closest to the breach of contractual duties to perform are the so-called positive Forderungsverletzungen ( violations of duties of care between the partners to a contract, other than by delay or supervening impossibility ); these concern the protection of the goods of the partner in the obligation ( Integritätsinteresse ). It is decisive, firstly, that even if the contract turns out to be null and void 27, there is a special relationship to a certain person and therefore no unreasonable proliferation as regards the compensation of pure economic loss must be feared; secondly, there is a greater possibility of influence on the sphere of the other party and the obligor will have been pursuing his / her own economic interests in the context of entering into the obligation. The duties to protect the pure economic interests of the other and to actively avert risks are thus to be imposed as in the framework of contract law. On the other hand, the concept of guarantee ( see below no 6 / 88 ), which supports the objective standard of fault for breaches of contract, does not apply in the field of ( special ) duties of care, so that as in the case of tort fault must be assessed subjectively. In relation to the shifting of the burden of proof under § 1298 ABGB at the expense of the obligor, on the other hand, it must be taken into account that the duties of ( special ) care are not part of the consideration and therefore the concept of an attenuated guarantee declaration does not carry water. Therefore, a differentiated solution is appropriate, taking as its base the existence of an objective defect within the sphere of the obligor 28. For similar reasons, the far-reaching liability for auxiliaries ( § 1313 a ABGB ), which applies to obligations, does not apply to its full extent either: while the principal is also liable

23Cf Stanzl in Klang IV / 12, 618; Schubert in Rummel, ABGB I3 § 945 no 1.

24See Koziol, Delikt, Verletzung von Schuldverhältnissen und Zwischenbereich, JBl 1994, 216; in agreement Bollenberger in KBB, ABGB3 § 945 no 1.

25Thus, also Bollenberger in KBB, ABGB3 § 945 no 1; Schubert in Rummel, ABGB I3 § 945 no 1; OGH 4 Ob 140 / 77 in SZ 50 / 137.

26See on this Wilburg, Elemente 147 f, 171, 223; Spiro, Erfüllungsgehilfen 104 ff; Koziol, JBl 1994, 216.

27See Canaris, Ansprüche wegen » positiver Vertragsverletzung « und » Schutzwirkung für Dritte « bei nichtigen Verträgen, JZ 1965, 475.

28On this F. Bydlinski, Zur Haftung der Dienstleistungsberufe in Österreich und nach dem EGRichtlinienvorschlag, JBl 1992, 347 ff; Koziol, Haftpflichtrecht I3 no 16 / 30 ff.

§ 81 ( 3 ) of the Austrian Insolvency Code ( IO ), which corresponds to § 60 ( 1 ) of the Germany Insolvency Code ( InsO ): The insolvency administrator ( » Insolvenzverwalter « ) is responsible to all parties involved for the pecuniary harm which he causes by breaching the duties of his office. Thus, there are special duties of care towards

29See below no 6 / 112 f, and Koziol, Haftpflichtrecht II2 343 ff with additional references.

30See on this Welser, Vertretung ohne Vollmacht 73 ff. Cf also Jansen, The Concept of Non-Contrac- tual Obligations: Rethinking the Divisions of Tort, Unjustified Enrichment, and Contract Law, JETL 2010, 40 ff.

31On these Kramer in MünchKomm, BGB II5, Einleitung no 31 ff.

32The rationale for prospectus liability as a further development of the basic principle of culpa in contrahendo ( thus, for example Welser, Prospektkontrolle und Prospekthaftung nach dem KMG, ecolex 1992, 301 ) is therefore not sufficient.

33On this Canaris, Schutzgesetz – Verkehrspflichten – Schutzpflichten, Larenz-FS 92 f, 94; Brawenz, Die Prospekthaftung nach allgemeinem Zivilrecht2 ( 1992 ) 82 ff, 160 ff; Koziol, Das Emissionsgeschäft, in: Apathy / Iro / Koziol, Österreichisches Bankvertragsrecht VI2 ( 2007 ) no 1 / 95 ff.

34Koziol in Apathy / Iro / Koziol, Bankvertragsrecht VI2 no 1 / 99.

the pure pecuniary interests of the creditors 35. Liability for his own auxiliaries is regulated according to the rules for contractual relationships, ie pursuant to § 1313 a ABGB, § 278 BGB 36.

There is also a similar special relationship between a court-appointed expert witness and the parties to a dispute 37.

4 / 14 Somewhat more limited is the liability arising out of contracts with a protective purpose in favour of third parties. Insofar as third parties are integrated within the protective scope of a contract, regard must be had to the fact that each such third party has independent economic assets. If pure economic interests are also included in the protective scope, there is a risk that liability would be extremely far-reaching. Thus, it appears reasonable that the majority in Austria support the view that the pure economic interests of the third party are only included within the protective scope if the main performance is owed to such third party 38. Another justification for this attenuation as compared with contractual liability is that the tortfeasor did not pursue his own interests in relation to the third party. The rights of the third party, in particular to bodily integrity and in rem rights, on the other hand, are protected to the same degree as in the context of breaches of contract. This means, in particular, that there is also an active duty to prevent damage occurring. Predominantly, the application of the far-reach- ing rules on vicarious liability for » performance agents « ( Erfüllungsgehilfen ) is advocated when it comes to breaches of special duties of care towards third

35On this F. Bydlinski, Schadenersatz wegen materiell rechtswidriger Verfahrenshandlungen, JBl 1986, 638 f; Shamiyeh, Die zivilrechtliche Haftung des Masseverwalters ( 1995 ) 57 ff; Welser, Sachverständigenhaftung und Insolvenzverfahren, NZ 1984, 95 ff.

36Chalupsky / Duursma-Kepplinger in Bartsch / Pollak / Buchegger ( eds ), Österreichisches Insolvenzrecht Kommentar III4 ( 2002 ) § 81 KO no 95; Hierzenberger / Riel in Konecny / Schubert ( eds ), Kommentar zu den Insolvenzgesetzen ( 1997 ) §§ 81, 81a KO no 12; Eickmann in Eickmann / Flessner / Irschlinger / Kirchhof / Kreft / Landfermann / Marotzke ( eds ), Heidelberger Kommentar zur Insolvenzordnung4 ( 2005 ) § 60 no 15.

37Cf Welser, NZ 1984, 95.

38This is the case when it comes to contracts to the benefit of third parties, indirect representation or factual rendering of performance to third parties. See on this Apathy / Riedler in Schwimann, ABGB IV3 § 882 no 10; Koziol, Haftpflichtrecht II2 87 f; further OGH 2 Ob 613 / 89 in ÖBA 1990, 726; 1 Ob 672 / 90 in SZ 63 / 187 = ÖBA 1991, 525 ( Canaris ); 1 Ob 503 / 92 in SZ 65 / 20 = JBl 1992, 713 ( Iro ) = ÖBA 1992, 841; 1 Ob 631 / 92 in WBl 1993, 264; 8 Ob 287 / 01s in JBl 2003, 379; 2 Ob 128 / 09a in JBl 2010, 445. Harrer in Schwimann, ABGB VI3 § 1295 no 121 f, considers it at least conceivable that pure economic interests in principle cannot be included in the protective scope. In favour of the comprehensive protection of pure economic interests, on the other hand, Welser, Die vorvertraglichen Pflichten in der Rechtsprechung des OGH, Wagner-FS ( 1987 ) 378. In German law, a stricter standard is applied when assessing whether pure economic damage is to be included; liability for pure indirect third-party damage ( Reflexschäden ) is rejected: see Gottwald in MünchKomm, BGB II5 § 328 no 128a; Liebmann, Der Vertrag mit Schutzwirkungen zugunsten Dritter ( 2006 ) 279 f. In Switzerland Loser, Die Vertrauenshaftung im schweizerischen Schuldrecht ( 2006 ) 624, 772 ff, suggests not limiting the compensation of pure pecuniary damage.

39Karner in KBB, ABGB3 § 1295 no 19 with additional references; Grundmann in MünchKomm, BGB II5 § 278 no 17.

40Karner in KBB, ABGB3 § 1295 no 19 with additional references.

41On this Koziol, Haftpflichtrecht II2 60 f, 72 f with additional references.

42Likewise Hoffmann, Der Einfluß des Gefälligkeitsmoments auf das Haftungsmaß, AcP 167 ( 1967 ) 400.

43On this Michalek, Die Haftung des Bergsteigers bei alpinen Unfällen ( 1990 ) 97 ff.

44See Michalek, Haftung des Bergsteigers 106 f; Koziol, Delikt, Verletzung von Schuldverhältnissen und Zwischenbereich, JBl 1994, 220.

45On this Koziol, Haftpflichtrecht I3 no 4 / 60 and II2 57 ff.

46See Spiro, Erfüllungsgehilfen 395 ff, 400 ff; Kerschner, Zur Haftung nach § 26 WRG und zum Deliktsstatut des IPR, JBl 1983, 343 f.

III.  The problem of concurrent claims

A.Concurrent claims, concurrent bases for claims or uniform basis of claims

4 / 18 If an absolute right or legal good is injured by breach of a contractual duty, it is usually also possible to qualify the infliction of the damage as a tort 47. For instance, if someone rents a car and damages it, this would constitute at the same time breach of the duties arising out of the rental contract and tortious infringement of property rights. If injury is suffered by a passenger in a taxi this could simultaneously fulfil the factual elements of the tort of violating bodily integrity and at the same time the breach of secondary obligations under the contract for services. Hitherto, it has been assumed in Germany and Austria either that contractual and tort claims exist independently of one another ( concurrent claims ) 48 or, that there was just one claim but with multiple bases ( Anspruchsnormenkonkurrenz ) 49. In France, on the other hand, the principle of » non-cumul « is endorsed 50.

4 / 19 It seems more appropriate not to assume different, concurrent bases for the claim but instead a uniform basis for the claim 51: as described above, the starting point is that the rules for contractual liability and tortious liability are the two ends of a chain of rules, which are based on the proximity of the relationship between victim and damaging party. In respect of each interim link, an appropriate overall rule for the liability criteria and the consequences of liability must be determined on the basis of an evaluation, by reference to one of the two areas of rules or by combining the principles of tortious and contractual liability. Thus, only one uniform basis for the claim applies to the damage.

4 / 20 This must also hold true when there is a contractual relationship between the victim and the damaging party but at the same time a tort has been committed by the infringement of an absolutely protected good and thus the damage, at least prima vista, would seem to fall both within the core area of contractual liability and that of tort liability. It must be noted that not every injury inflicted upon the

47Cf Larenz / Canaris, Schuldrecht II / 213 § 83 VI 1. An example from the case law of the OGH can be found in 2 Ob 58 / 67 in JBl 1968, 88.

48As regards Germany see Dietz, Die Anspruchskonkurrenz bei Vertragsverletzung und Delikt ( 1934 ); Arens, Zur Anspruchskonkurrenz bei mehreren Haftungsgründen, AcP 170 ( 1970 ) 392; Schlechtriem, Vertragsordnung und außervertragliche Haftung ( 1972 ) 57 ff; G. Wagner in MünchKomm, BGB V5 Vor § 823 no 68. For Österreich cf Reischauer in Rummel, ABGB II / 13 § 1295 no 25.

49Georgiades, Die Anspruchskonkurrenz im Zivilrecht und Zivilprozeßrecht ( 1968 ); Larenz / Wolf, Allgemeiner Teil9 § 18 no 38 ff.

50Ferid / Sonnenberger, Das französische Zivilrecht II ( 1986 ) no 2 O 41 ff; Stoffel-Munck in: Tourneau, Droit de la Responsabilité et des Contrats7 ( 2008 ) no 1017 ff; Brieskorn, Vertragshaftung und responsabilité contractuelle 218 ff.

51See Koziol, JBl 1994, 221 ff. Similar also Bälz, Picker-FS 76 ff.

ship und vice versa the liability arising out of a more intense relationship is not always stricter than that based on a weaker relationship. Rather, the positive laws laid down by the legal system may mean that tort liability is further-reaching than contractual liability ( see below no 4 / 26 ff ).

Therefore, it is always necessary to examine whether the protection provided in the tort area must be seen as a minimal level of protection, below which the contractual claim for compensation may not generally sink, so that the tort norms apply in a supplementary fashion, or whether the liability rule applicable to the special relationship is aimed at limiting the tort protection by means of a lex specialis. The interests at stake in a special relationship can lead to the value judgement that the protection provided under the law of damages must be attenuated

52In effect this corresponds largely to the French » principe du non-cumul «; on this from a comparative perspective Immenhauser, Das Dogma von Vertrag und Delikt 32 ff.

not only in relation to other special relationships but indeed also in relation to the area of tort. One example is supplied by the reduction of employee liability under the DHG. This value judgement of the legislator may certainly not be circumvented by granting independent, tort claims for compensation.

4 / 23 Nonetheless, it is not the case that the liability rule applicable to a more intensive relationship between damaging party and the victim may always be understood as a comprehensive, conclusive lex specialis in relation to all the rules for less intense relationships, ie in particular to the tort rules. Instead it is always vital to consider how far the special nature extends and whether more general norms might not also be relevant. Thus, for instance, the less strict liability imposed on the donor applies only to the protective scope of the contract but not to goods protected under tort law 53 ( see no 4 / 9 ).

Admittedly, the view propagated here will lead as a rule to the same conclusions as the theory of concurrent claims or concurrent bases for claims 54. The solutions, however, are more natural if a single claim is awarded, assessed according to a uniform liability rule applicable only for the respective special relationship.

B. Individual questions

4 / 24 As fault gives rise in principle to liability, and the extent of the duty to compensate and the prescription period in relation to the claim are subject to the same rules, the question of which of several norms is applicable will often have no particular significance under Austrian law. Under German law, the differences between contract and tort liability were significantly greater, above all since damages for pain and suffering were formerly only available under tort law and consequently the debate regarding the norms to be applied were substantially more heated 55. Now § 253 ( 2 ) BGB provides for the compensation of non-pecuniary damage in respect of both types of claim, hence there has been harmonisation in this sense. Nonetheless, there are still significant differences in both legal systems.

4 / 25 Under § 708 BGB, for instance, a member of a partnership is only liable for the same care as he customarily exercises in his own affairs when fulfilling the duties

53Cf also G. Wagner in MünchKomm, BGB V5 Vor § 823 no 71 f.

54In international private law, however, it can have significant impacts, as there will not be two different claims at issue to be established.

55On the problems of concurrence in German law Dietz, Das Problem der Konkurrenz von Schadensersatzansprüchen bei Vertragsverletzung und Delikt, Deutsche Landesreferate zum VI. Internationalen Kongreß für Rechtsvergleichung in Hamburg 1962 ( 1962 ) 192 ff; Eichler, Die Konkurrenz der vertraglichen und deliktischen Haftung im deutschen Recht, AcP 162 ( 1962 ) 401 ff; Schlechtriem, Vertragsordnung und außervertragliche Haftung ( 1972 ) 289 ff; Grunewald, Eigentumsverletzung im Zusammenhang mit fehlerhaften Werkleistungen, JZ 1987, 1098.

incumbent upon him. This amounts to a less stringent standard as compared with the objective measure provided for in general under § 276 BGB. According to prevailing German opinion 56, this preferential standard is also applicable if the damage caused by the partner is also qualifiable as a tort. This is justified by the close ties of the partners in relation to the pursuance of corporate aims and the degree of care to be taken in relation to the corporate assets, but not, on the other hand, with respect to other damage caused in the context of tort 57. Other liabilityrelated privileges are also granted priority over general tort rules 58.

In Austrian law, the starting point is that a subjective standard is applicable to fault within the realm of tort, and an objective measure in relation to breach of contract. As the use of an objective standard under contract law is based on the attenuated notion of guarantee ( see below no 6 / 88 ), the stricter, objective standard must be applied when there is concurrent breach of contract and tort insofar as the notion of guarantee is relevant to the rendering of the promised performance. Beyond this, however, the rules applicable to tort apply.

A limitation on fault-based liability for breach of contractual duties is assumed 4 / 26 in the case of mora creditoris ( Gläubigerverzug ) under § 1419 ABGB: in such a case

the obligor is only liable in respect of serious fault 59. If one wanted to take this view, this could certainly apply for breach of contract but not as regards tortious conduct. There is no reason why the liability in relation to everyone should be limited merely because the obligee is in default. Even taking this view, there is enough scope for the application of this limitation on liability as it is by no means the case that a tort concurs with a breach of contract in every case or even regularly 60. In truth, however, this issue would not seem to concern a limitation of liability to serious fault in contravention of the general principle. Instead, it should be understood in the sense that the transferor’s duties of care are limited in consequence of the mora creditoris 61, but that if these limited duties of care are infringed, there is liability for all pertinent fault. Since the extent of the obligor’s duties of care are certainly not limited to less than generally exist under the law of tort in relation to third-party property, tortious liability will not ultimately be more onerous than contractual: according to both rules, all fault gives rise to liability and the contractual duties of care are certainly not more restricted than those under tort, indeed they are possibly more extensive.

56Larenz / Canaris, Schuldrecht II / 213 § 83 VI 2 a; further details in Dietz, Landesreferate 197.

57Schlechtriem, Vertragsordnung 418 ff, 442.

58G. Wagner in MünchKomm, BGB V5 Vor § 823 no 69 ff.

59See Gschnitzer in Klang VI2 392; Mayrhofer, Schuldrecht I3 462; Schey, Begriff und Wesen der mora creditoris ( 1884 ) 120 ff; OGH 7 Ob 639 / 80 in SZ 54 / 90.

60Above all Dietz, Landesreferate 198 f has pointed this out.

61Koziol in KBB, ABGB3 § 1419 no 5.