Экзамен зачет учебный год 2023 / Koziol_BasicQuestions_Germanic

emergence of maintenance obligations; rather a comprehensive family law relationship has also been created, consisting of pecuniary and also non-pecuniary duties and rights. As the pecuniary and non-pecuniary components are inseparably interwoven, no one duty may be viewed in isolation, it is always necessary to look at the overall relationship, which however cannot in principle be viewed as a disadvantage. On the other hand, this mediatory solution does allow a claim for compensation if the parents’ maintenance costs represent a truly exceptional burden and thus the overall relationship can no longer be considered balanced.

In this respect, however, the issue is not whether the maintenance must be paid for a child with or without a disability 76, the only decisive factor is whether an exceptional burden is constituted by the maintenance obligations due to the financial situation of the parents. Such a burden can even be the case when it comes to average maintenance costs for a child without a disability and may, vice versa, not necessarily be the case even if very high costs for a child with a disability emerge depending on the parents’ respective financial capacity.

The mediatory solution not only gives rise to difficulties in drawing the distinction between usual and exceptional burdens 77, but also fundamental questions of how such a combined approach can be justified. This will be looked at in more detail.

countervailing basic values: the principle of human dignity and that of family care speak for a personal interpretation of the concept of damage; the liability functions and grounds for liability under the law of damages, conversely, for the isolated consideration of the financial aspects. F. Bydlinski feels that it is necessary in this context to draw on the general principles of law; at issue is the thorny problem of balancing conflicting principles. Thus, it is necessary to optimise the approach: as the colliding principles cannot be implemented in full due to the conflict, they must be balanced against each other to obtain a hierarchical relation. It must be determined to what extent and in the case of which factual characteristics within the conflict area, either of the two principles should prevail. Limitations on one of the principles are in any case only permissible insofar as

76This is rightly emphasised by Ch. Hirsch, Familienplanung 51; The OGH, however, tends in some decision towards such differentiation, cf the case law analysis by Koziol / B.C. Steininger, RZ 2008, 138 ff, and by B.C. Steininger, Wrongful birth revisited: Judikatur zum Ersatz des Unterhaltsaufwands nach wie vor uneinheitlich, ÖJZ 2008, 436.

77On this in detail Ch. Hirsch, Familienplanung 82 ff.

78F. Bydlinski, Liber amicorum for Helmut Koziol 39 ff. Critical Kletečka, Wrongful Birth, Wrongful Conception, JBl 2011, 749 ff.

this is required in order to optimise the fulfilment of the other, conflicting principle ( » rule of balancing « ). Furthermore, none of the conflicting principles may be allowed to have no effect whatsoever in the course of this balancing, as this would mean it was not recognised as an equally valid principle of the legal system.

5 / 43 F. Bydlinski points out that both the family law solution and the approach under the law of damages are inadequate: the former completely ignores the basic law of damages functions and liability principles at issue in rejecting any form of compensation. The pure law of damages approach, on the other hand, neglects the intrinsic personal value of the » source of damage « by focussing on the financial consequences in isolation. Thus, both models only have regard to their preferred principles when it comes to a specific problem, and override those of the other model; this does not constitute any kind of balancing of the » priorities «.

5 / 44 The combination idea can thus find its methodological justification in the balancing of principles 79: the law of damages does not have the purpose of steamrolling disadvantages governed by family law that only represent one side of the existence and thus the intrinsic personal value of the child. Insofar, as F. Bydlinski emphasises, the principles of personal dignity and family bonds have priority over the compensatory functions and grounds for liability when it comes to balancing them against each other. In turn, on the other hand, these first-named principles must be subjected to a certain restriction in order to allow the principles of the law of damages to come into effect if the maintenance costs for the child mean a really exceptional burden for the parents.

5 / 45 However, the methodological justification of the mediatory solution must not only be considered at the abstract level of the general principles of law but also, in my opinion, at the more concrete methodological level, specifically within the context of the law of damages.

The combination approach proceeds on the basis that the parents are not usually entitled to any compensation for unwanted birth because the burden of obligations imposed by the maintenance costs cannot be seen in isolation as comprehensive family law relations have emerged and thus various pecuniary and non-pecuniary dimensions must be taken into account 80. The establishment of such a comprehensive parent-child relationship can as a rule not be regarded as pecuniary damage. As material and immaterial rights and duties are inseparably intertwined and constitute a unified whole, no obligation can be taken out in isolation and classified as damage.

5 / 46 In conclusion then, it is suggested that an approach well-tried in the field of pecuniary damages be taken, namely the adjustment of damages due to benefits received ( Vorteilsanrechnung ). This arises in part at least from the method of

79F. Bydlinski, Liber amicorum for Helmut Koziol 45 f, 65.

80See Koziol, Haftpflichtrecht I3 no 2 / 28 with additional references; Ch. Hirsch, Familienplanung 53 f.

calculating the damage according to the so-called » difference method «: the damage constitutes the difference between the hypothetical pecuniary state in the absence of the damaging event and the actual pecuniary state as a result of the damaging event 81. As the entire financial state is taken into account in this assessment, it is a matter of course that the benefits also caused by the damaging event have the effect of reducing the damage. Nonetheless, this adjustment of the damages accordingly may not be carried out mechanically, rather it is necessary to carry out an evaluative analysis 82.

However, this adjustment of damages to take account of benefits received 5 / 47 is only recognised within the pecuniary field. On the other hand, it is generally assumed that a pecuniary advantage shall not be deducted from a claim for pain

and suffering and equally pecuniary disadvantages are not set off against nonpecuniary advantages 83. The rationale in this respect as regards the second variation at issue here is that if non-pecuniary advantages were offset, the victim would only receive compensation for part of his pecuniary damage whereas he would have to bear the other part himself; the pecuniary losses sustained would therefore not be indemnified in full. This would seem untenable in view of the compensatory function of the damages claims, which carries full force when it comes to pecuniary damage.

However this argument is not compelling as it requires what must be proved: if reference is had to the compensatory function then the question is whether this is ever separately directed at the pecuniary and the non-pecuniary fields respectively 84. The compensatory function could after all also be understood as meaning that the damage should be regarded as a whole and, accordingly, that only the sum of the pecuniary and non-pecuniary disadvantages and advantages must be compensated. It is also possible to argue that the notion of prohibition on enrichment will not be adequately taken into consideration if another approach is adopted, as the victim gains a non-pecuniary advantage and thus is put in a better position overall than in the absence of the damage. It is by no means clear that all non-pecu- niary advantages should be left disregarded when making an overall assessment, even though the legal system provides for the – admittedly difficult – calculation of non-pecuniary interests and orders their compensation in money.

81See Karner in KBB, ABGB3 § 1293 no 9 with additional references.

82Karner in KBB, ABGB3 § 1295 no 16 with additional references.

83See on this Pletzer, Vorteilsausgleich beim Schmerzengeld ? JBl 2007, 428 ff.

84Likewise this rests on an unproven requirement, eg, when Engel, Haftung Dritter für die unerwünschte Geburt eines Kindes, ÖJZ 1999, 627, states that like can only be offset against like and this is interpreted as meaning that non-pecuniary interests cannot be balanced by pecuniary interests. Naturally, it is only possible to offset interests of a like nature; however, this can be facilitated by evaluating non-pecuniary interests in money as is a matter of course when such are compensated in money.

5 / 48 Hence, this counter-argument is not persuasive. Nevertheless, it must be conceded that the counter-theory of general offsetting also appears problematic. Specifically, when the legal system by no means always considers non-pecuniary interests to be recoverable and certainly not according always on the same basis as pecuniary interests, then at least the corresponding reticence must be exercised when offsetting such interests as an advantage. Hence, greater differentiation is clearly necessary. Nonetheless, this conclusion does indicate that it is permissible to ask whether the issue at stake here does not display special features that speak for the offsetting of non-pecuniary advantages against pecuniary disadvantages 85.

The cases discussed here certainly do display a relevant specificum in my opinion: the damaging party causes not only duties of maintenance but also a comprehensive family law relationship, in which pecuniary and non-pecuniary components are inseparably interwoven. The family law relationship, caused by the damaging party, is not as such accessible to classification under either the pecuniary or the non-pecuniary category. Hence, it would consequently be utterly arbitrary to consider just one aspect and leave all others aside. This would certainly contravene the principle of comprehensive assessment of damage.

5 / 49 Engel 86, on the other hand, argues for the autonomy of the pecuniary maintenance aspects and seeks to justify this with reference to examples that in his opinion show that the autonomy of the maintenance law relationship is always assumed. It is true that pursuant to § 1327 ABGB and likewise under § 844 BGB, surviving dependants may take action based on the right to maintenance in isolation. In such cases, however, the specificum relevant to our issue of simultaneous causation of non-pecuniary advantages – this would be happiness at the death of the person liable to pay maintenance – does not typically apply. The same applies for cases where the father may take separate action based on the increased maintenance costs incurred due to a child being injured: again, the injury to the child is unlikely to cause any non-pecuniary advantage to the parents. It must also be taken into account that this does not concern the causation of an overall family law relationship, as of course the conduct of the damaging party only causes the pecuniary expense to the parents but does not affect the other aspects of their relationship with their child and thus such other aspects cannot be relevant as there is no causal link.

85Both Engel, ÖJZ 1999, 627, and Pletzer, JBl 2007, 430 as well as Schwarzenegger, Posch-FS 715 f, refer, however, to precisely the cases at issue here as examples supporting their rejection of the idea of adjusting damages to take account of benefits received.

86ÖJZ 1999, 627.

of the child that are at issue but the fact that the parents’ right to decide has been frustrated 90. If, furthermore, the advantages and disadvantages associated with the existence of the child balance out, then these advantages cannot once again be balanced against the issue of compensation for the frustration of the right to

87A comparative law overview is offered by Bagińska, Wrongful Birth and Non-Pecuniary Loss: Theories of Compensation, JETL 2010, 171 ff.

88Das Kind als Schadensursache im Österreichischen Recht, Liber amicorum for Helmut Koziol ( 2000 ) 63.

89Arzthaftung bei fehlgeschlagener Familienplanung 210 ff.

90See on this B.C. Steininger, JETL 2010, 148 ff.

decide. According to present Austrian law, it is therefore very possible that compensation be awarded for the negative emotions associated with the frustration of the freedom to decide in the case of serious fault ( §§ 1323, 1324 ABGB ).

The Austrian Draft expressly provides for the compensation of such non-pecu- niary damage 91.

II.  Causation

A. The normative imprint of the notion of causation within tort law

5 / 53 Shifting the damage sustained from one person to another, in the sense that the victim is granted a claim against a person liable to pay compensation, requires under the private law structural principle of bilateral justification ( see above no 2 / 92 ), not only that the obligee has compensation interests worthy of protection, but also that there are factual reasons for why the duty to compensate the victim should be imposed specifically on this obligor. Besides other criteria for liability, the basic condition that has to be fulfilled in order for a duty to compensate the victim to be imposed upon a particular person is that such person » has something to do with the damage «, ie that there is a connection between him or his legal sphere and the damage which has been incurred. Thus, in practically all legal systems 92 a connection between the liable party and the damage which occurred is more or less clearly required as a precondition for any obligation to compensate the damage: he himself or his sphere must have caused the damage. This extensive concurrence between systems is due to the realisation that – as F. Bydlinski 93 forcefully pointed out – it is causation which founds a concrete, relevant and tangible link between humans on one hand and external circumstances and events which affect humans on the other. Any notion of interpersonal responsibility has to rely on the criterion of causation in relation to external or immaterial factors. Only with the help of this criterion, can negative or positive happenings be imputed to a particular person.

5 / 54 As can be inferred from the above, and as is also emphasised by F. Bydlinski, causation is not a natural, everyday-theoretical or scientific term but a normative

91§ 1321 ( 1 ) reads: » A person who by improper performance of a contract thwarts the decision of parents to avoid the birth of a child in an admissible fashion must render appropriate compensation for the non-pecuniary damage caused by such injury of the parents’ freedom of decision.«

92Zimmermann, Conditio sine qua non in General – Comparative Report, in: Winiger / Koziol /  Koch / Zimmermann, Digest I 1 / 29 no 1 ff; Durant, Causation, in: Koziol / Schulze, EC Tort Law 47 ff.

93F. Bydlinski, Causation as a Legal Phenomenon, in: Tichý, Causation 8 f. Cf already idem, System und Prinzipien 185 ff.

in the sense of the conditio sine qua non, liability for the damage is denied on the basis of very different criteria 97.

B. Cause as a necessary condition

The cause is considered in present-day Austrian 98 and German 99 law to be a nec- 5 / 57 essary condition and causation is examined using the conditio-sine-qua-non formula 100: a circumstance is causal for a result if it cannot be imagined away with-

94In this sense also von Bar, Deliktsrecht II no 438; van Dam, Tort Law 270; Hart / Honoré, Causation in the Law2 ( 1985 ) 101 ff.

95Cf on this and the following also Koziol, Natural and Legal Causation, in: Tichý, Causation 51 ff.

96See F. Bydlinski, Schadensverursachung 21; Koziol, Haftpflichtrecht I3 no 3 / 2; Schulin, Der natürliche – vorrechtliche – Kausalitätsbegriff im zivilen Schadensersatzrecht ( 1976 ) 164 ff.

97On this Koziol in: Tichý, Causation 59 ff.

98Koziol, Haftpflichtrecht I3 no 3 / 5 ff with additional references.

99Lange / Schiemann, Schadensersatz3 79 ff with additional references.

100On the problem of the doctrine of regular condition advocated by some, see F. Bydlinski, Causation as a Legal Phenomenon, in: Tichý, Causation 15; Koziol, Haftpflichtrecht I3 no 3 / 7. Clearly, Gebauer, Hypothetische Kausalität und Haftungsgrund ( 2007 ) 8 also has the theory of the regular

out the result also disappearing. The Austrian Draft also follows this line ( § 1294 ). Similarly, in almost all other legal systems, causation is established using the conditio-sine-qua-non formula or the but-for test, which is in fact similar 101 and is also used by the Court of Justice of the European Union 102. Finally, the PETL of the EGTL expressly adopt the conditio-sine-qua-non formula ( Art 3 : 101 PETL ).

5 / 58 The wide-ranging recognition of the causal link prerequisite as a criterion for liability is based on it ensuring that only such harm is imputed as was avoidable, at least in an abstract sense 103. The condition formula ensures that a loss is not imposed upon someone on the basis of his behaviour if the loss would have occurred even had he behaved in a different manner. If someone would not have been able to prevent the loss, then he is free from any blame; his behaviour cannot be considered deficient even on the most abstract plane, and thus cannot be deemed a ground for liability. In precisely this sense, Schulin 104 writes: » If the person liable to pay damages did not have any means of preventing the loss for which the claim against him is asserted, then neither can he be held liable to that extent.«

5 / 59 Criticism of the condition formula is often expressed because it includes an extremely broad, almost boundless field of events: each occurrence of damage is based on countless conditions and this criterion would point above all to the victim having to bear the damage too, as his existence is an essential condition for the occurrence of the damage. Nonetheless, it must be considered that causation alone can never be enough for liability for damage. Rather, there must be an interrelation with further criteria for liability, in particular fault or the control of some special source of danger. On the other hand, causation is at least the first filter and marks the outermost limits for liability for damage 105: responsibility for the damage is precluded if there was no influence at all on the emergence of the damage even in the most abstract sense.

condition in mind when he alleges that the causal link can be established even if an action is

not a conditio sine qua non; in conclusion he points to the law-like nature of a consequence.

101See von Bar, Deliktsrecht II no 411 and 413; Brüggemeier, Haftungsrecht 27 ff; van Dam, Tort Law 268 f; Deakin / Johnston / Markesinis, Markesinis & Deakin’s Tort Law6 ( 2007 ) 244; Zimmermann, Conditio sine qua non in General – Comparative Report, in: Winiger / Koziol / Koch / Zimmermann, Digest I 1 / 29 no 1 and 4. There are, however, also some critical voices, see eg Wright, Causation in Tort Law, 73 Cal L Rev 1985, 1775 ff.

102Cf C-358 / 90 Compagnia Italiana Alcool Sas di Mario Mariano & Co. [ 1992 ] ECR, I-2457; Wurmnest, Grundzüge eines europäischen Haftungsrechts ( 2003 ) 177 f; Durant, Causation, in: Koziol / Schulze, EC Tort Law no 3 / 29 ff.

103See F. Bydlinski in: Tichý, Causation 14 f; Röckrath, Kausalität, Wahrscheinlichkeit und Haftung ( 2004 ) 8, 12 ff.

104Kausalitätsbegriff 27.

105Cf on this also Spickhoff, Folgenzurechnung im Schadensersatzrecht: Gründe und Grenzen, in: E. Lorenz ( ed ), Karlsruher Forum 2007 ( 2008 ) 15 ff; Frei, Der rechtlich relevante Kausalzusammenhang im Strafrecht im Vergleich mit dem Zivilrecht ( 2010 ) 35 ff.

C. Causation through someone’s sphere

Vicarious liability for auxiliaries and strict liability for special sources of danger 5 / 62 seem to indicate that responsibility under tort law does not necessarily depend

on causal, damaging conduct on the part of the liable party him / herself. However, Wilburg 109 rightly emphasises that the liable party is often involved, at least indirectly, in the chain of causation in that he / she engaged the auxiliaries that later caused the damage, holds the things which caused the damage or put the dangerous undertaking into operation. Wilburg 110 and F. Bydlinski 111 nonetheless also point out that in some cases indirect causation by the liable party him / herself cannot even be affirmed in that such party or his / her representatives could

106See Burgstaller, Das Fahrlässigkeitsdelikt im Strafrecht ( 1974 ) 34; Gottwald, Kausalität und Zu-­ rechnung, Karlsruher Forum 1986, 6; Schulin, Der natürliche Kausalitätsbegriff 105 ff.

107See on this and on the weak points in the theory of the regular condition Koziol, Haftpflicht­ recht I3 no 3 / 5 ff.

108More detail on imagining away and imagining in events when it comes to examining causation in Riss, Hypothetische Kausalität, objektive Berechnung bloßer Vermögensschäden und Ersatz verlorener Prozesschancen, JBl 2004, 423, in particular 427 ff; Koziol, Wegdenken und Hinzudenken bei der Kausalitätsprüfung, RdW 2007, 12.

109Elemente 6 f, 40 ff.

110Elemente 6.

111F. Bydlinski, Causation as a Legal Phenomenon, in: Tichý, Causation 9.

have removed the auxiliaries who directly caused the damage or the relevant thing prior to the occurrence of damage. Specifically this argument does not hold true, for instance, if a small child inherits a railway company without already having a legal representative who could have exerted any influence on the sphere of auxiliaries and things.

5 / 63 In this context – as rightly emphasised by F. Bydlinski – it is clear that at least in some cases mere causation by the sphere of auxiliaries and things is sufficient even in the absence of any possibly relevant conduct on the part of the actual liable party or his / her representative. According to F. Bydlinski, this approach is supported, inter alia, by the pragmatic aspect, that in any other case the decisive issue would be the often unanswerable question of whether the liable party in person or his / her representative had any real ( but not at all indicated ) possibility of influencing the events giving rise to the damage. The principle of commutative justice points in any case towards liability, ie the idea that the party who enjoys the advantages must also bear the disadvantages 112.

Thus, besides causation by one’s own behaviour, causation by one’s sphere is also a highly significant form of causation.

D. Omissions as cause

5 / 64 It is generally recognised – also in other legal systems – that omissions can be causal for damage 113 and, thus, that someone may be liable not only on the basis of his active conduct but also due to his omissions. It is often rightly pointed out that a non-event cannot be causal in a natural sense but only in a legal sense 114.

5 / 65 It must also be taken into consideration that the conditio-sine-qua-non formula must be applied in a different manner depending on whether omission or active conduct is concerned 115: if the question is whether active conduct was causal, the test looks at what would have happened in the absence of this conduct

112On this F. Bydlinski in: Tichý, Causation 9; Wilburg, Elemente 5 f, 40 f.

113von Bar, Deliktsrecht II no 94; Brüggemeier, Haftungsrecht 25; Koziol, Liability for Omissions – Basic Questions, JETL 2011, 130 f; Zimmermann, Damage Caused by Omission – Comparative Report, in: Winiger / Koziol / Koch / Zimmermann, Digest I 2 / 29 no 1.

114On this problem area Larenz, Die Ursächlichkeit der Unterlassung, NJW 1953, 686; Traeger, Der Kausalbegriff im Strafund Zivilrecht ( 1904, Nachruck 1929 ) 61 ff; E.A. Wolff, Kausalität von Tun und Unterlassen ( 1965 ) 33 ff; cf also Hart / Honoré, Causation in the Law2 ( 1985 ) 447 ff; Wright, Acts and Omissions as Positive and Negative Causes, in: Neyers / Chamberlain / Pitel ( eds ), Emerging Issues in Tort Law ( 2007 ) 287 ff; Widmer, Es nihilo responsabilitas fit, or the Miracles of Legal Metaphysics, JETL 2011, 136 ff.

115Zimmermann in: Winiger / Koziol / Koch / Zimmermann, Digest I 2 / 29 no 3; Durant, Damage Caused by Omission – Belgium, in: Winiger / Koziol / Koch / Zimmermann, Digest I 2 / 7 no 5. Likewise von Bar, Deliktsrecht II no 413; Koziol, Haftpflichtrecht I3 no 3 / 14; Magnus, Causation by Omission, in: Tichý, Causation 97; Markesinis / Unberath, The German Law of Torts4 ( 2002 ) 104.