Экзамен зачет учебный год 2023 / Koziol_BasicQuestions_Germanic
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Chapter 4 |
The area between tort and breach of an obligation |
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Dietz 67 has rightly pointed out that this fear is unfounded since it is not always the case that there is a tort besides the breach of contractual duties and thus sufficient scope remains for the special contract law rules. All damage inflicted upon pure economic interests, ie without infringing an absolute right, that does not infringe a protective law and almost all damage caused by omission only leads to liability as breach of contract; moreover, the victim only benefits from a reversal of the burden of proof under § 1298 ABGB and the far-reaching vicarious liability for auxiliaries under § 1313 a ABGB within the framework of contractual liability 68. In my opinion, there is moreover no discernible reason why a damaging party should receive preferential treatment merely because he has a contractual relationship with the victim.
Thus, it must be assumed that – insofar as nothing else can be deduced from 4 / 30 the aim and purpose of the norm – within the short limitation periods set under contract law, it is only the compensation claims based on principles of contract
law that are limited whereas the tort law claims for compensation may still be pursued after the expiry of these periods. As the burden of proof is reversed in the case of breaches of contract ( § 1298 ABGB ), the short limitation periods also fulfil their purpose from this perspective: the victim can only take advantage of this alleviation of the burden of proof within said short time periods; thereafter he must prove the fault of the damaging party in order to assert his claims for compensation under tort ( § 1296 ABGB ) 69.
The same must apply for the same reasons to the compensation claims taken by corporations against their executive bodies, which are time-barred after five years under Austrian law pursuant to § 25 ( 6 ) GmbHG 70 and § 84 ( 6 ) AktG 71 and under German law pursuant to § 43 ( 4 ) dGmbHG 72 and § 93 ( 6 ) dAktG 73.
67Landesreferate 202, 198 f.
68Thus, also the OGH 6 Ob 698 / 89 in EvBl 1990 / 62 = RdW 1990, 112. Likewise, in principle, 2 Ob 606 / 84 in JBl 1986, 248 = ZVR 1985 / 86 = RdW 1985, 244 and 5 Ob 568 / 85 in SZ 59 / 147 = JBl 1986, 793 ( Ch. Huber ) = RdW 1986, 367, however, in these decisions the OGH still overlooked the different liability for auxiliaries; cf on this Ch. Huber, Zur Verjährung des Schadenersatzanspruchs gegen den Frachtführer, JBl 1986, 227.
69Likewise OGH 5 Ob 568 / 85 in SZ 59 / 147.
70Feil in Gellis ( ed ), GmbH-Gesetz. Kommentar7 ( 2009 ) § 25 no 30; Koppensteiner / Rüffler ( eds ), GmbH-Gesetz. Kommentar3 ( 2007 ) § 25 no 23.
71Nowotny in Doralt / Nowotny / Kalss ( eds ), Kommentar zum Aktiengesetz ( 2003 ) § 84 no 38; Strasser in Jabornegg / Strasser ( eds ), Kommentar zum Aktiengesetz4 ( 2001 ) § 84 no 110.
72Altmeppen in Roth / Altmeppen ( eds ), GmbH-Gesetz. Kommentar6 ( 2009 ) § 43 no 137 f; Wicke ( ed ), GmbH-Gesetz. Kommentar ( 2008 ) § 43 no 20; Zöllner / Noack in Baumbach / Hueck ( eds ), GmbHGesetz. Kommentar18 ( 2006 ) § 43 no 57.
73Hüffer ( ed ), Aktiengesetz8 ( 2008 ) § 93 no 36 with additional references.
Helmut Koziol
Basic Questions of Tort Law from a Germanic Perspective
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Chapter 5
The basic criteria
for a compensation claim
I. Damage
A. Introduction
If the compensatory function is recognised as the primary function of the law of |
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damages, the existence of damage must accordingly be a clear prerequisite for any |
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right to compensation to arise and the size of the claim must depend on the extent |
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of the damage. The imposition of » punitive damages « must consequently – as |
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stated above in no 1 / 23 and 2 / 55 ff – be rejected within the framework of tort law |
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as the imposition of such does not serve to cover the disadvantage suffered by the |
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victim but instead goes beyond this in order to punish the perpetrator. |
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With the aim of compensation of harm, tort law is also distinguished on the |
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basis of its fundamental principle from the law on unjust enrichment, which while |
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it also deals with interference with third-party goods – insofar as actions for unjust |
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enrichment by interference ( Eingriffskondiktionen or Verwendungsansprüche ) |
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are concerned – nonetheless is not directed at the compensation of harm suffered |
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by the claimant but instead at the disgorgement of the advantage gained unjustly |
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by the enriched ( see above no 2 / 26 ). |
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Only a few legal systems define what is to be understood as damage 1. The |
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ABGB provides one such rare exception with its § 1293: » Damage is any harm that |
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has been inflicted on someone to his patrimony, rights or his person. This is dis- |
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tinguished from loss of profit, which someone is entitled to expect in the normal |
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course of events.« This Austrian tradition is continued by § 1293 ( 1 ) of the Austrian |
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Draft: » Damage is any harm that a person suffers to his person, patrimony or any |
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other of his protected interests. If such harm can be measured in money then |
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there is pecuniary damage, otherwise it is non-pecuniary damage «. Inspired by the |
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1See Magnus, Comparative Report on the Law of Damages, in: Magnus, Unification: Damages 190; further the country reports in the chapter » General Overview « in: Winiger / Koziol / Koch / Zimmermann, Digest II.
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Basic Questions of Tort Law from a Germanic Perspective
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Helmut Koziol |
Basic Questions of Tort Law from a Germanic Perspective |
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ABGB, a definition was also included in the PETL; under the heading » Recoverable |
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Damage « Art 2 : 101 provides: » Damage requires material or immaterial harm to a |
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legally protected interest « 2. |
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B. Recoverable damage |
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The PETL express the idea very clearly by the heading: in the context relevant here, |
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the question is not what can be understood as damage under the most various |
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aspects; rather, under tort law only such damage is relevant as is deemed recov- |
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erable in principle by the legal system. The criteria for recoverability are clearly |
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expressed in all the descriptions laid out above: there must be impairment of |
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interests recognised and therefore protected by the legal system. The ABGB, which |
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does not expressly address the protected interests also takes this as a basis: this |
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results, firstly, from the fact that reference is had to the impairment of rights, and, |
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secondly, from the fact that comprehensive protection is granted to the person |
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under the legal system and only such goods are understood as patrimony as are |
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allocated to the individual by the legal system and thus may be used or consumed |
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subject to the legal possibilities in this respect. Accordingly, K. Wolff describes |
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damage as » any state that is to be deemed a disadvantage in legal terms, ie in |
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which a lesser legal interest exists than in the former state « 3. |
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This criterion derives from fundamental principles of our legal systems: the |
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goods are allocated by the legal system to individual persons or legal entities and |
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thereby such system also grants the owner of the subjective right – as so eloquently |
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expressed by § 354 ABGB – » the authority to dispose freely over the substance and |
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uses of a thing and to exclude everyone else from such «. Tort law serves – along- |
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side many different rules – to protect the allocation of goods and thus the owners |
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of such goods. When the legal system allocates the goods, it recognises therewith |
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that interests are at stake, which are legitimate according to its value judgements |
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and thus also require protection. Hence, tort law certainly does not have the task |
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of protecting interests that are censured by the legal system. |
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This is shown by very simple and self-evident examples: naturally a disadvan- |
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tage is suffered by a thief when the thing he went to so much trouble to steal is |
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destroyed by a third party and he consequently loses the use of it. For a gang of |
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criminals it may come to substantial » losses in turnover « if another group enters |
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into unfair competition with it – in terms of the relevant standards valid in the |
2The Acquis Communautaire and case law of the ECHR also take a similar notion of damage
as their premise if the basis is harm to legally protected interests; see Vaquer, Damage, in: Koziol / Schulze, EC Tort Law 23 ff; Oskierski, Schadensersatz im Europäischen Recht ( 2010 ) 74.
3K. Wolff in Klang, ABGB VI2 1.
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criminal world. While there is undoubtedly an interest in not allowing such harm to occur, this interest is not recognised and accordingly not protected by the legal system, either in the form of preventive or reparative injunctions, actions for unjust enrichment or indeed claims for compensation. In the following ( no 6 / 18 ff ) there will be a discussion of the extent to which the legal system does not censure infringements of interests due to their minor nature or at least does not foresee the provision of compensation for such.
A special area with specific problem issues is formed by those interests that 5 / 5 are recognised by the legal system but not allocated to any individuals in particu-
lar, ie general interests. The most important example in practical terms is the general interest in an intact environment. These interests are, however, predominantly not allocated to individual persons or entities – specifically insofar as they are not attached to any ownership right – and thus the available private law protective mechanisms cannot be applied: said mechanisms require an interest-holder, who is granted claims against another because such other is accountable for an interference censured by the legal system, understood very broadly. This criterion derives from the private law structural principle of bilateral justification already highlighted above in no 2 / 92: it is not sufficient to justify why a duty – in this case to compensate – should be imposed; it is also necessary to justify why another subject of the law is granted the entitlement corresponding to such duty.
An obvious solution to the problem would be to allocate these interests in the environment to the public sector – ie to such organisation as is charged with realising and safeguarding the general interests – and thus to fulfil an essential requirement for asserting claims for compensation. However, there are still further problems in connection with the criterion that there be damage because the impairment of the environment per se does not constitute any loss measurable in monetary terms and it is also necessary to resolve the question of whether the public sector as a legal entity is capable of sustaining non-pecuniary damage and, if so, whether it has standing to assert such ( on this below no 5 / 21 f ). On the other hand, there should be no great obstacle to taking action for a claim to restoration of the previous state ( restitution in kind ) or for the expenses incurred in restoration. This notion clearly influenced the EU Directive 4 and its implementation, leading to a very public law focus.
42004 / 35 / CE. On this Duikers, Die Umwelthaftungsrichtlinie der EG ( 2006 ) 53 ff; Hille, Die EURichtlinie über Umwelthaftung zur Vermeidung und Sanierung von Umweltschäden ( 2007 ) 99 ff; Köhler, Öffentlich-rechtliche Umwelthaftung ( 2008 ) 35 ff.
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C. Natural, legal or economic definition of damage ?
5 / 6 The above discussions have already shown that tort law cannot be based on a natural definition of damage 5: not everything which may be perceived as a disadvantage may also be qualified as damage under tort law. If it is much more decisive whether a legally protected interest is infringed, this also makes it clear that the relevant definition of damage is legally based. This becomes even clearer when it is taken into account that tort law – as will be discussed in more detail later – distinguishes between pecuniary and non-pecuniary, real damage and damage established by way of calculation in money, objective-abstract or subjective-concrete damage, and damage measured according to reliance and expectation loss. Thus, the term » damage « is certainly no natural term in any sense predetermined by the law, but rather a legal term 6 – as is ultimately the case with all other terms used in legal norms, the meaning of which depends on the aim and purpose of the respective norms.
5 / 7 For analogous reasons, neither is » damage « a purely economic term. As European legal systems do not primarily pursue economic goals according to their fundamental value systems and instead it is the individual with all his / her nonpecuniary interests that provides the focus, and social goals and non-economic general interests are taken into account, legal systems cannot be equated to economic systems. Hence, the meaning of the term » damage « cannot be determined by purely economic concepts either.
D.Pecuniary and non-pecuniary damage 7
1.In general
5 / 8 The legal system recognises not only pecuniary but also non-pecuniary interests, which indeed may even be accorded a higher rank than economic interests. Therefore, the fundamental personality rights take the highest place in the hierarchy of interests; this is expressed in particular by their special protection under the provisions of the constitution, the European Convention on Human Rights and the UN Charter of Human Rights.
Depending on which interests are infringed, the terms non-pecuniary ( immaterial ) and pecuniary ( material ) damage are used. This is expressed in Art 2 : 101 PETL and in § 1293 ( 1 ) of the Austrian Draft.
5For the discussion see the detailed description in Lange / Schiemann, Schadensersatz3 26 ff; further Magnus, Schaden und Ersatz ( 1987 ) 11 ff; Koziol, Haftpflichtrecht I3 no 2 / 6 ff.
6In this sense too, eg, Lange / Schiemann, Schadensersatz3 38 ff.
7On the following cf with further references above all F. Bydlinski, Der Ersatz ideellen Schadens als sachliches und methodisches Problem, JBl 1965, 173 and 237; Karner / Koziol, Ersatz ideellen Schadens 11 ff; Schobel, Frustrierte Aufwendungen.
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Due to the nature of interests infringed, non-pecuniary damage represents |
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such harm as do not lead to any reduction of economic assets 8. Instead emotional |
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damage is suffered, which cannot be measured directly in money or assessed by |
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reference to real market processes in economic categories 9. At the same time, as |
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elaborated by Schobel 10 in an astute analysis of the various theories, the crucial cri- |
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terion for classifying damage as pecuniary is that there is a loss of value in an item |
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that can be disposed of on the market for money according to the estimation of the |
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general public – and not merely that of the specific holder of the right. |
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2. The special nature of non-pecuniary damage |
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The compensation of non-pecuniary damage is not only particularly important |
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because this often involves grave damage affecting the core area of personality |
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rights but also because if compensation is refused for non-pecuniary harm, seri- |
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ous infringements of personality rights would often remain completely unsanc- |
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tioned under private law unless they also give rise to consequential damage in the |
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pecuniary context 11. This kind of outcome would satisfy neither the compensatory |
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nor the deterrent purpose of tort law 12. |
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Nonetheless, most legal systems are restrictive when it comes to granting |
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damages in respect of non-pecuniary harm 13. In the light of what has just been |
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said, this greater reluctance to make awards for non-pecuniary damage is cer- |
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tainly not based on any lower ranking of non-pecuniary interests as opposed to |
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pecuniary interests 14. Rather, this reservation derives from the difficulties – to a |
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greater and lesser extent – posed by assessing non-pecuniary harm in money or |
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even in determining such in the first place. |
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As far as the assessment is concerned, it must first be taken into account that |
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non-pecuniary damage cannot be directly evaluated in money but that only a balanc- |
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ing of the non-pecuniary harm in money or a certain restitution is possible 15. Hence, |
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the compensation of non-pecuniary harm in money necessarily requires a discre- |
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8See Koziol, Haftpflichtrecht I3 no 2 / 102 ff with additional references.
9F. Bydlinski, System und Prinzipien 221; Koziol, Haftpflichtrecht I3 no 2 / 11; Magnus, Schaden 311.
10Schobel, Frustrierte Aufwendungen 47 ff.
11Canaris, Grundprobleme des privatrechtlichen Persönlichkeitsschutzes, JBl 1991, 220; F. Bydlinski, Der immaterielle Schaden in der österreichischen Rechtsentwicklung, von Caemmerer-FS ( 1978 ) 785.
12F. Bydlinski, System und Prinzipien 223.
13Cf W.V.H. Rogers, Comparative Report of a Project Carried Out by the European Centre for Tort and Insurance Law, in: W.V.H. Rogers, Non-Pecuniary Loss no 5 ff; Zimmermann, Comparative Report, in: Winiger / Koziol / Koch / Zimmermann, Digest II 13 / 30 no 1 ff.
14This is also emphasised by F. Bydlinski, System und Prinzipien 222.
15On this in particular F. Bydlinski, Die » Umrechnung « immaterieller Schäden in Geld, Liber amicorum for Pierre Widmer ( 2003 ) 27 ff; Schobel, Frustrierte Aufwendungen 187 f.
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tionary decision 16: the » first assessment « of non-pecuniary harm can only be done |
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very freely and in an arbitrary manner, though an appropriate relation between the |
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compensation awards for different non-pecuniary harm should be striven towards. |
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Naturally, there is not so much free discretion when it comes to awarding compen- |
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sation in subsequent, comparable cases. The amount of compensation awarded |
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finds its justification in comparison with similar cases already decided. Accordingly, |
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the Austrian OGH 17 considers it to be a decisive question of law whether the non- |
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pecuniary damages awarded by the lower courts fit within the framework of the |
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Supreme Court’s case law. The fairness of the damages for non-pecuniary damage |
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thus depends on whether comparable cases are evaluated the same and different |
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cases differently and there is at least a rough proportion between the sums of com- |
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pensation, which corresponds to the rank of the interests infringed. |
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It is often feared that the widespread compensation of non-pecuniary damage |
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will lead to the commercialisation of immaterial goods. Even if there is such a dan- |
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ger in individual cases – for instance, an example might be found in the Caroline |
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von Monaco decisions in Germany 18 – it should nonetheless not be over-estimated. |
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Decisions that are in accordance with the system and take into account the funda- |
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mental values can certainly counteract it adequately 19. |
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In connection with non-pecuniary damage, however, another, a more difficult |
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problem arises, more serious than that of the assessment problems: it is often |
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only very difficult to establish whether and to what extent someone has suffered |
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non-pecuniary damage 20. Hence, when it comes to awarding damages particular |
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importance is attached to objective indicators that help to ascertain whether and |
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to what extent non-pecuniary damage has occurred 21. The varying degree to which |
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non-pecuniary damage can be objectivised is dependent in this respect on the type |
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of right infringed, which must certainly also be taken into account with respect |
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to recoverability. |
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See on this F. Bydlinski, System und Prinzipien 222 f, 224 FN 230. |
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From more recent times, eg, in the decision 2 Ob 135 / 07b in JBl 2008, 182 = ZVR 2008 / 59 ( Ch. |
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Huber ). |
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After a fictional newspaper report, Caroline von Monaco was awarded DM 180,000 compensa- |
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tion for non-pecuniary damage suffered ( Caroline von Monaco I: BGH in BGHZ 128, 1; OLG Ham- |
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burg in NJW 1996, 2870 ). On this Karner / Koziol, Ersatz ideellen Schadens 27 ff; G. Wagner, The |
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Protection of Personality Rights against Invasions by Mass Media in Germany, in: Koziol / War- |
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zilek, Persönlichkeitsschutz 175, which refers to the pecuniary aspects when it comes to the per- |
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sonality rights of famous persons. |
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Critical on the objection of commercialisation also Schobel, Frustrierte Aufwendungen 191 f. |
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20 Cf F. Bydlinski, Der Ersatz ideellen Schadens als sachliches und methodisches Problem, JBl 1965, |
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242 f; Schobel, Frustrierte Aufwendungen 188 ff; Stoll, Empfiehlt sich eine Neuregelung der Ver |
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pflichtung zum Geldersatz für immateriellen Schaden ? Gutachten für den 45. DJT I / 1, 143 f. |
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See F. Bydlinski, System und Prinzipien 222 ff; Karner, Ersatz ideeller Schäden 81 ff, 84 ff; Koziol, |
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Haftpflichtrecht I3 no 11 / 7 ff. OGH 4 Ob 281 / 98x in MR 1998, 345 ( M. Walter ). Cf also Funkel, |
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Schutz der Persönlichkeit durch Ersatz immaterieller Schäden in Geld ( 2001 ) 196 f, 247. |
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The basic criteria for a compensation claim |
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The basic criteria for a compensation claim |
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The special status provided by the ABGB and BGB for compensation for pain |
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and suffering in the case of bodily injury can be explained by its relative transpar- |
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ency: compensation for the infliction of physical pain is historically the oldest |
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form of compensation for non-pecuniary damage, in comparative law terms it is |
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indeed a fundamental element of the development of every tort law. Prior to the |
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reform of the law of damages in 2002, § 847 BGB only provided for pain and suf- |
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fering claims in the case of injury to the body, health or liberty of the person. In |
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Austria its special position is expressed by the fact that under § 1325 ABGB com- |
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pensation for non-pecuniary damage in the form of pain and suffering damages |
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is owed for injury to bodily integrity even in the case of slight negligence and such |
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claims are also provided for in all non-fault-based strict liability constellations |
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while other non-pecuniary harm only leads to compensation claims in the case of |
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serious fault on behalf of the injuring party ( § 1324 ABGB ). This special status of |
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damages for non-pecuniary harm in the case of bodily injuries is based not only |
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on the special rank of the injured legal good but above all on the fact that the pain |
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suffered as well as the duration thereof can be relatively easily determined on the |
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basis of the type and severity of the injury and thus it is particularly amendable |
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to the objectivisation so important for the monetary compensation of non-pecu- |
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niary harm 22. This applies also to the emotional distress that must be taken into |
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consideration: in this context the actual impediment to or frustration of the day- |
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to-day style of living aspired to by the victim serves as the objective basis 23. |
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On the other hand, objectivisation supplies an argument supporting the |
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stance of the amended versions of § 253 BGB and the ABGB pursuant to § 1330 |
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ABGB in excluding awards of damages for non-pecuniary harm consisting in pure libel: such non-pecuniary harm is particularly inaccessible to objectivisation 24. The exclusion of damages under § 1330 ABGB for non-pecuniary harm in this respect goes too far, of course. F. Bydlinski 25 has pointed out that this may seem justified in the case of everyday libel cases but not when it comes to such infringements as lead to an objectively determinable, serious injury to the reputation of the victim, ie consist in a grave impairment of his social standing. Naturally, the draconian limitation on compensation under § 1330 ABGB can be mitigated de lege lata by restricting the exclusion of compensation to cases of pure libel whereas non-pecuniary harm will be compensated when the person’s dignity is
22See F. Bydlinski, JBl 1965, 243; Karner, Ersatz ideeller Schäden 81 ff.
23Karner, Ersatz ideeller Schäden 85 ff, 93 f with additional references.
24Koziol, Haftpflichtrecht I3 no 11 / 8.
25Der Ersatz ideellen Schadens als sachliches und methodisches Problem, JBl 1965, 252 ff; idem, Der immaterielle Schaden in der österreichischen Rechtsentwicklung, von Caemmerer-FS ( 1978 ) 798. Also critical Hinteregger, Der Schutz der Privatsphäre durch das österreichische Schadenersatzrecht de lege lata et de lege ferenda, Liber amicorum for Pierre Widmer ( 2003 ) 159 ff.
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injured 26. This serves to defuse § 1330 ABGB somewhat, though it does not of course completely free the Austrian system of any contradictions 27. § 1316 of the Austrian Draft now provides for a harmonious, general rule. In Germany, the BGH has invoked the Basic Law ( Grundgesetz ) to override the narrow confines of the BGB and also grants monetary compensation for non-pecuniary harm in cases where general personality rights are infringed and there is serious fault or substantial violation 28; a corresponding development can also be detected in Italian law 29.
5 / 17 Finally, it must be stressed that for corresponding reasons – analogous to those in relation to objectivisation – the compensation of non-pecuniary damage is all the more likely when the personality rights injured are relatively clearly demarcated. Pure emotional damage, such as diffuse negative emotions or feelings of aversion 30, that are not based on the impairment of a personality right, on the other hand, are in principle irrecoverable 31. Under German law, this limitation derives from the wording of § 253 ( 2 ) BGB, which only mentions injury to body, health, freedom or sexual self-determination, and the narrow containment of compensation for interferences with the general right of personality.
5 / 18 A further argument against compensating non-pecuniary damage lies in the subjectively distasteful combination of non-pecuniary values with money 32. This idea has played a significant role when it comes to the issue of compensation for nonpecuniary harm in cases where sexual self-determination is concerned or reputation and led to the rejection of compensation under §§ 1328 and 1330 ABGB. Within this field, however, a striking change of view can be detected, which has led to the amended version of § 1328 ABGB, which now provides for » appropriate compensation for the impairment suffered «, which can be understood as meaning the compensation of non-pecuniary harm 33. Within the field of libel, the change in values has after all impacted on the Media Act ( Mediengesetz ) in relation to libel by the mass media and the Austrian Draft provides for damages under § 1316 very generally in relation to serious and objectively traceable injuries to personality rights.
26F. Bydlinski, von Caemmerer-FS 798; idem, JBl 1965, 253 f. Following this line, Canaris, Grundpro bleme des privatrechtlichen Persönlichkeitsschutzes, JBl 1991, 220; Aicher in Rummel, ABGB I3 § 16 no 34.
27On this Karner / Koziol, Ersatz ideellen Schadens 98 f.
28On this Larenz / Canaris, Schuldrecht II / 213 § 80 I; Kötz / G. Wagner, Deliktsrecht10 ( 2005 ) no 363 ff.
29See Christandl, Eine kurze Darstellung der neuesten Entwicklungen im italienischen Nicht vermögensschadensrecht unter besonderer Berücksichtigung des danno esistenziale, in: Patti / Stein / Bariatti / Becker / Slazar / Nehm ( eds ), Jahrbuch für Italienisches Recht 18 ( 2005 ) 277 with additional references; Bargelli, Schmerzengeld, danno biologico, Nichtvermögensschaden, Personen-Schaden-Forum 2006 ( 2006 ) 15 ff.
30See on this Kegel, Haftung für seelische Schmerzen ( 1983 ) 16 ff.
31See F. Bydlinski, JBl 1965, 243 f; idem, System und Prinzipien 223; Karner, Ersatz ideeller Schäden 79 f; Koziol, Haftpflichtrecht I3 no 11 / 10.
32See on this Schobel, Frustrierte Aufwendungen 190 f.
33Danzl in KBB, ABGB3 § 1328 no 8.
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Chapter 5 |
The basic criteria for a compensation claim |