Экзамен зачет учебный год 2023 / Koziol_BasicQuestions_Germanic

come into question as tortfeasors and cases in which either a responsible perpetrator or a coincidence caused the damage on an equal footing, it may be objected that only in the former case has it been established that the victim would definitely not have to bear the loss himself, but not in the second case 156. Thus, it is sometimes concluded that K ought not to be granted a partial claim. The view in many legal systems 157 is, therefore, that it is decisive as regards the claim to damages, whether the doctor is proven to have brought about the patient’s deterioration in health or even his death by a medical error. If the claimants can prove causation they will be granted full compensation; if they fail to prove it, they get nothing.

This leaves us with the dissatisfying consequence that doctors are always free of any liability in spite of clear medical negligence if the claimant cannot meet the difficult challenge of proving causation. It is true that this would be avoidable if the burden of proof were reversed for causation, as is advocated for instance in German law in the case of serious fault on the part of the doctor 158. Nonetheless, this

154I. Zivilkammer des Zürcher Obergerichtes, ZR 1989, Nr 66; Zürcher Kassationsgericht, ZR 1989, no 67.

155F. Bydlinski, Beitzke-FS 30 ff; idem, Haftungsgrund und Zufall als alternativ mögliche Schadensursachen, Frotz-FS ( 1993 ) 3; following this line Koziol, Haftpflichtrecht I3 no 3 / 36 ff; idem, Auf dem Weg zur Vereinheitlichung des Europäischen Schadenersatzrechts 67 ff ( Korean ), 209 ff ( German ); Karner in KBB, ABGB3 § 1302 no 5; Heinrich, Haftung bei alternativer Kausalität mit Zufall ( 2010 ); idem, Teilhaftung bei alternativer Kausalität mit Zufall, JBl 2011, 277 ff, in each case with additional references. Taupitz, Proportionalhaftung zur Lösung von Kausalitätsproblemen – insbesondere in der Arzthaftung, Canaris-FS I ( 2007 ) 1233 ff, 1238 ff, agrees with the solution in terms of determining the scope of liability but not for establishing liability.

156Against the decisiveness of this argument rightly Röckrath, Kausalität 179 ff, 185 ff.

157See on this Faure, Medical Malpractice in a Comparative Perspective, in: Faure / Koziol, Medical Malpractice 276 ff.

158See, mainly very critical, Stoll, Haftungsverlagerung durch beweisrechtliche Mittel, AcP 176 ( 1976 ) 147 f; G. Wagner, Neue Perspektiven im Schadensersatzrecht – Kommerzialisierung, Strafschadensersatz, Kollektivschaden, Gutachten A zum 66. Deutschen Juristentag 2006 ( 2006 ) 60; Sträter, Grober Behandlungsfehler und Kausalitätsvermutung ( 2006 ); Spickhoff, Folgenzurechnung im Schadensersatzrecht: Gründe und Grenzen, in: E. Lorenz ( ed ), Karlsruher Forum 2007,

solution does not resolve the main objection: Hans Stoll 159 has already pointed out that the all-or-nothing principle leads to completely contrary results when there are slight differences in the likelihood of the causal link, which however can be decisive for the satisfaction of the burden of proof, the results being namely full liability or complete freedom from liability. Reversing the burden of proof would only mean that in case of doubt the tortfeasor is liable; it would change nothing with respect to the abrupt switch from full freedom from any liability to comprehensive liability.

5 / 89 However, not only the dissatisfying consequences of the all-or-nothing solution 160 but also weighty dogmatic grounds support the partial liability approach suggested by F. Bydlinski: the solution of joint and several liability for alternative perpetrators, which is generally recognised in Austria, is based on merely potential causation by those liable. If in such cases potential causation is sufficient grounds for liability, then the same must consequently apply if only one responsible perpetrator may have caused the damage and the victim must bear the risk of the other potential cause of the damage. If the potential tortfeasor and the victim must jointly bear the consequences of the damage, then this means – as in cases of contributory responsibility ( § 1304 ABGB, § 254 BGB ) – that the potential tortfeasor must compensate in part. The proportion to be borne by the victim must be set higher if he has himself been negligent than if the alternative cause is mere coincidence 161.

5 / 90 Nonetheless, it is often argued against the partial liability approach 162 that it would lead to a fundamental rearrangement of tort law, which cannot be justified by the reference to § 1304 ABGB, § 254 BGB. It is submitted that F. Bydlinski’s theory means that absolutely everybody who acted in an unlawful and culpable manner and thus only possibly caused damage would be liable for such damage.

73 ff. Schiemann, Kausalitätsprobleme bei der Arzthaftung, Canaris-FS I ( 2007 ) 1161; idem, Problems of Causation in the Liability for Medical Malpractice in German Law, in: Tichý, Causation

187, argues that the notion of risk allocation justifies the reversal of proof at every degree of fault.

159Stoll, Schadensersatz für verlorene Heilungschancen vor englischen Gerichten in rechtsvergleichender Sicht, Steffen-FS ( 1995 ) 466. Against the all-or-nothing principle more recently also, for example, Faure / Bruggeman, Causal Uncertainty and Proportional Liability, in: Tichý, Causation 105 ff; Seyfert, Mass Toxic Torts: Zum Problem der kausalen Unaufklärbarkeit toxischer Massenschäden ( 2004 ) 63 ff; Stremitzer, Haftung bei Unsicherheit des hypothetischen Kausalitätsverlaufs, AcP 208 ( 2008 ) 676 ff.

160On this more recently Taupitz, Canaris-FS I 1231 ff.

161See on this below no 6 / 216 ff and Schobel, Hypothetische Verursachung, Aliud-Verbesserung und Schadensteilung, JBl 2002, 777 f.

162Welser, Zur solidarischen Schadenshaftung bei ungeklärter Verursachung im deutschen Recht, ZfRV 1968, 42 ff. Recently his line of argument was followed again by Kletečka, Alternative Verursachungskonkurrenz mit dem Zufall – Die Wahrscheinlichkeit als Haftungsgrund ? JBl 2009, 141 f, an. Against Welser’s line of argument already Quendoz, Modell einer Haftung bei alternativer Kausalität 65; recently also Heinrich, Haftung bei alternativer Kausalität mit Zufall 59 f.

For – the critics say – any doubt as to causation constitutes an alternative cause competing with coincidence: coincidence is namely everything that does not lead to liability. In all cases in which causation cannot be established with 100 % certainty, Bydlinski is said to consider the damage to have been caused by something else with a probability difference out of 100; consequently, the apportionment theory must indeed lead to liability according to the degree of probability.

However, this line of criticism deliberately ignores 163 the fact that partial liability does not apply as soon as there is any difficulty at all with respect to proof of causation but only when two particular events pose an extremely high degree of concrete risk and thus were potentially causal. As long as there are only general difficulties in proving the causality of culpable conduct on the part of the perpetrator, it is firstly not the case that viewing the conduct in question in isolation would mean causation must be taken as proven given the spatial and chronological connections as well as the specific, very high probability that the conduct would give rise to the damage. Thus, there is neither sufficiently weighty potential causation to justify liability nor the necessary counterweight – necessary according to basic values – for the weakness of this liability criterion in the form of a high degree of specific risk. On the other hand, not every obstacle of proof against the perpetrator is matched by an event imputable to the victim, which when viewed in isolation would have to be deemed proven causal due to the spatial and chronological connections as well as the specific probability that it would give rise to the damage and the only obstacle to the proof that the perpetrator’s conduct was causal is the consideration of this specific, dangerous event. There are sill very many, completely undetermined possibilities as regards the causal chain, for instance, that the perpetrator’s conduct constituted a conditio sine qua non, or that he merely brought about the damage jointly with another responsible perpetrator, or was alternatively causal with another perpetrator, an unknown third party was the solely responsible cause or indeed a circumstance imputable to the victim was a joint or sole decisive cause for the damage. In the case of general evidential difficulties, therefore, it is not justifiable to shift the damage to the perpetrator as the liability criterion of merely potential causation and as a counterweight to the weakness of said criterion the required high degree of specific risk is not satisfied to the degree required by the underlying basic evaluation.

A further, fundamental consideration is that it hardly seems justifiable to limit 5 / 91 » proportional liability « only to just one of the facts on which the claim is based, namely the causation. The question that arises is why someone, who can repre-

sent the facts decisive in showing unlawfulness or fault with a certain probability,

163Kletečka, JBl 2009, 141, hardly engages with the counter-arguments already made against Welser by Koziol, Haftpflichtrecht I3 no 3 / 37 and 38.

either by a medical mistake or an illness of the mother; it was impossible to establish which of the two circumstances was in fact causal. The OGH emphasised that only F. Bydlinski’s doctrine provided a solution compliant with the principle of fairness, because otherwise in the case of competing causes constituted by a culpable action and a coincidence only unintelligible and inequitable extreme solutions were conceivable: » One would otherwise be forced either to the view that the victim must lose any entitlement to compensation because of the impossibility of proving which of the two events was in fact causal, or that the tortfeasor must compensate the victim in full regardless of the fact that it has not been established at all that his action caused the injury. Either solution would contravene the fundamental principles of the Austrian law of damages.«

The partial liability approach has also been meeting – albeit with different reasoning – increasing international resonance 166, for example with Canaris 167, Seyfert 168, G. Wagner 169 and Wilhelmi 170 in respect of German law; Akkermans 171 from the Netherlands came to the same conclusion and Stark 172 as well as Loser-Krogh 173 advocate the same for Switzerland; in England partial liability has at least been recognised for cases in which the potential causal events have given rise to » the same kind of risk « 174. From a comparative law perspective partial liability is also supported by Kadner Graziano 175. The EGTL has adopted this idea and incorporated it in the PETL ( Art 3 : 106 ). Likewise, the Austrian Draft provides for partial liability of the potential tortfeasor; coincidence must be imputed to the victim, who consequently shall bear the proportion of damage corresponding thereto ( § 1294 Austrian Draft ). This solution is also supported by the economic analysis

166On European legal systems see Koziol, Comparative Report, in: Winiger / Koziol / Koch / Zimmermann, Digest I 6b / 29 no 4 ff; on Austrian, English and Dutch law see the description by Oliphant in: Verschraegen, Interdisciplinary Studies of Comparative and Private International Law I 181 ff. From a comparative law perspective for the medical area B.A. Koch, Medical Liability in Europe: Comparative Analysis, in: B.A. Koch, Medical Liability in Europe 635 with references to the country reports.

167Larenz / Canaris, Schuldrecht II / 213 § 82 II 3c.

168Seyfert, Mass Toxic Torts 105 ff.

169G. Wagner, Proportionalhaftung für ärztliche Behandlungsfehler de lege lata, Hirsch – FS ( 2008 ) 453.

170Wilhelmi, Risikoschutz 305 ff.

171Proportionel aansprakelijkheid bij onzeker causal verband ( 1997 ) 70 ff; idem, Theorie en praktijk van proportionele aanspraklijkheid, in: Akkermans / Faure / Hartlief ( eds ), Proportionele aanspraklijkheid2 ( 2000 ) 85 ff.

172Oftinger / Stark, Haftpflichtrecht I5 152.

173Kritische Überlegungen zur Reform des privaten Haftpflichtrechts – Haftung aus Treu und Glauben, Verursachung und Verjährung, Schweizerischer Juristentag 2003, Heft 2, 169.

174See Fairchild v Glenhaven Funeral Services [ 2002 ] United Kingdom House of Lords 22 [ 2003 ] 1 AC 32, and on this Oliphant, Koziol-FS 805 f.

175The » Loss of a Chance « in European Private Law. » All or Nothing « or Partial Compensation in Cases of Uncertainty of Causation, in: Tichý, Causation 143 ff.

of law approach 176. On the other hand, the partial liability solution is rejected vigorously in many countries 177.

f.Excursus: the doctrine of loss of a chance as the better means to a solution ?

5 / 93 Especially in cases in which, while it cannot be established whether the correct treatment would have made it possible to prevent the illness or death of a patient, in retrospect there would at least have been a chance of avoiding the harm, then the argument is increasingly put forward that the doctor can be held liable in any case even though the causation of illness or death could not be proven against him, if he demonstrably caused the loss of a chance of recovery.

Corresponding arguments are put forward in cases of lawyers’ liability: a lawyer misses the deadline for submitting an appeal; as a consequence the judgement becomes final. It cannot be established whether the appeal would have been successful had it been filed on time; there was however, a substantial chance of success at appeal. And finally, the loss of a chance of succeeding also plays a significant role in the discussion. The Austrian OGH 178 had to decide on the compensation claim of a claimant who had wrongfully been denied a license to trade in foreign currency by the National Bank of Austrian ( central bank ). The assessment of the amount of future profit lost could present substantial difficulties thereby and make an assessment of the chance of profit thwarted at the time of the damaging action an attractive basis for the assessment.

5 / 94 The doctrine that the loss of a chance can be used as a basis comes from France but has already spread to other countries 179 and has also been adopted in the UNIDROIT-Principles of International Commercial Contracts ( Art 7.4.3. para 2 ) 180:

176Faure / Bruggeman, Causal Uncertainty and Proportional Liability, in: Tichý, Causation 108 ff.

177See Koziol, Comparative Report, in: Winiger / Koziol / Koch / Zimmermann, Digest I 6b / 29 no 3. Parts of the Austrian theory also object to the partial liability solution: Welser, ZfRV 1968, 42 ff; idem, Bürgerliches Recht II13 ( 2007 ) 335; Lukas, Anmerkungen zu OGH 1 Ob 2139 / 96g, JBl 1997, 395 f.

178OGH 1 Ob 8 / 95 in ÖBA 1996, 213; cf also the article by Rebhahn, Schadenersatz wegen nicht erteilter Devisenhandelsermächtigung ? ÖBA 1996, 185.

179Cf on all this Müller-Stoy, Schadenersatz für verlorene Chancen ( 1973 ); Kasche, Verlust von Heilungschancen ( 1999 ); Koziol, Schadenersatz für verlorene Chancen ? ZBJV 2001, 889; Große­ richter, Hypothetischer Geschehensverlauf und Schadensfeststellung – Eine rechtsvergleichende Untersuchung vor dem Hintergrund der perte d’une chance ( 2001 ); Mäsch, Chance und Schaden ( 2004 ) 156 ff; Kadner Graziano, The » Loss of a Chance « in European Private Law. » All or Nothing « or Partial Compensation in Cases of Uncertainty of Causation, in: Tichý, Causation 133 ff; idem, Ersatz für » Entgangene Chancen « im europäischen und im schweizerischen Recht, HAVE 2008, 63 f; further for country reports and the comparative report in section 10 in Winiger / Koziol / Koch / Zimmermann, Digest I 10 / 1 no 1 ff.

180On this Koziol, Europäische Vertragsrechtsvereinheitlichung und deutsches Schadensrecht, in: Basedow ( ed ), Europäische Vertragsrechtsvereinheitlichung und deutsches Recht ( 2000 ) 199 f; Mäsch, Chance und Schaden 224 f.

which causation is deemed to have been given or not lead to contrary results. Very similar concerns are also voiced by the Austrian OGH 183; it sought the solution, however, via the rules on alternative causation.

Undoubtedly, the » perte d’une chance « theory 184 is satisfying from the point of view of the results insofar as it leads to compensation for the loss of a chance in proportion to the probability of its happening, thus avoiding extreme solutions for very slight differences in the assessment of probability 185. It appears doubtful, however, that this doctrine offers a dogmatically appropriate solution that is in

181Cf the country reports in Winiger / Koziol / Koch / Zimmermann, Digest I: Austria ( 10 / 3 no 6 ); Belgium ( 10 / 7 no 5 ); Ireland ( 10 / 14 no 5 ); Scotland ( 10 / 13 no 4 ); Slovenia ( 10 / 26 no 3 ); Italy ( 10 / 9 no 4 ). The Portuguese courts, however, sometimes proceed on the basis of a causation problem ( 10 / 11 no 6 ), cf also the commentary on Case 1 ( 1 / 11 no 8 ).

182Some countries use the loss of a chance theory to overcome the problem with establishing a causal link, see the country reports on England ( 10 / 12 no 2 ) and Ireland ( 10 / 14 no 5 ) in Winiger / Koziol / Koch / Zimmermann, Digest I.

183OGH 4 Ob 554 / 95 in JBl 1996, 181.

184See Viney / Jourdain, Traité de Droit Civil. Les obligations: Les conditions de la responsabilité3 ( 2006 ) 316 ff, 421 ff; Galand-Carval, France, in: Faure / Koziol, Medical Malpractice 114 ff; in German literature in particular Kasche, Heilungschancen 3 ff, 119 ff; Mäsch, Chance und Schaden 143 ff.

185Bieri / Marty, The Discontinuous Nature of the Loss of Chance System, JETL 2011, 23 ff, show, however, that the theory of loss of a chance yields substantially different results in the case of slight changes in facts and moreover, by no means leads to the same results as the proportional liability systems.

harmony with the overall system 186. The reasons for this scepticism can be clearly demonstrated with reference to the sub-problem: loss of a chance of recovery.

5 / 97 Firstly, the following must be pointed out: there are certainly cases in which the defendant has not destroyed any chance by his wrongful conduct, rather it simply can no longer be established whether the defendant brought about the illness or the claimant was already ill. For instance, in the above-mentioned case the Austrian OGH 187 had to decide on the claim of a child whose deformity was caused either by a medical error at the time of his birth or had already been brought about incurably by an illness of the mother. If the child was already deformed before the birth, then there was no more chance of recovery and the medical error did not even destroy any chance ( of recovery ). If, however, the child was healthy up until the birth, then the medical error not only thwarted said chance, it actually caused the injury to the child’s health.

In such cases, in which one cannot speak of destroying a chance but which in fact are clearly concerned only with the problem of the impossibility of clarifying the cause of the deformity, it is clear that the doctrine of » perte d’une chance « cannot offer any help on the basis of its fundamental idea. Thus, this doctrine must admit the criticism that it is not capable of solving cases which are of similar merit, in the same fashion. For both the above-described case of injury existing as of the time of birth and in cases in which the doctrine of » perte d’une chance « is applicable, the same problem is at the core: namely that it is not possible to establish whether the doctor caused the health injury by his malpractice or not. No persuasive evaluation criteria are discernible for why the victim’s compensation claim should depend on whether the injured party still had a chance of recovery at the time of the medical malpractice or not. In both cases the real issue is only that it is not humanly possible to know how the damage was really caused.

5 / 98 A further, very decisive problem is addressed by Stoll 188: the chance of recovery is not an independent legally protected good, such as could trigger duties to compensate when injured. Rather, it is only bodily integrity that is comprehensively protected. Stoll 189 and also Kasche 190 are nonetheless of the opinion that the lack

186Thus, in 2007 also the Swiss Federal Court: BGE 133 III 462. The decision was discussed in detail in ERPL 2008, 1043 ff; thus also by B.A. Koch, Der Verlust einer Heilungschance in Österreich 1051 ff and Oliphant, Loss of Chance in English Law 1061 ff.

187OGH 4 Ob 554 / 95 in JBl 1996, 181.

188Stoll, Schadensersatz für verlorene Heilungschancen vor englischen Gerichten in rechtsvergleichender Sicht, Steffen-FS ( 1995 ) 475 f. Cf also Kadner Graziano, The » Loss of a Chance « in European Private Law. » All or Nothing « or Partial Compensation in Cases of Uncertainty of Causation, in: Tichý, Causation 143 ff; Kasche, Heilungschancen 250 ff; Müller-Stoy, Schadenersatz für verlorene Chancen ( 1973 ) 233 f; Röckrath, Kausalität 180 f; Taupitz, Proportionalhaftung zur Lösung von Kausalitätsproblemen – insbesondere in der Arzthaftung, Canaris-FS I 1234.

189Steffen-FS 475.

190Heilungschancen 224 ff.

of an independent protected legal good only poses difficulties in German law but not in French law with its blanket tort provision. At least in relation to Austrian law 191, which has in § 1295 ABGB a blanket clause very similar to Art 1382, 1383 of the French Code civil, and equally for Swiss law 192 with its general rule in Art 41 OR, this consideration ultimately does not apply: according to the ABGB too – as explicitly stipulated in §§ 1294, 1295 – the tortfeasor only has a duty to compensate if he had acted unlawfully and culpably. It is in answering the question as to which conduct is unlawful in the field of tort that the so-called absolutely protected interests play their really decisive role in the ABGB, but also in most other legal systems 193. As a result, the German legal system with its individual elements of the offence, which provide for the protection of certain legal interests, and the Austrian legal system with its general clause, do not differ so radically as might appear at first glance.

As far as chances of recovery are concerned, they have hitherto in principle not been seen as independent interests legally protected against infringements. Nowadays, only bodily integrity, health and life are seen as protected legal interests which must be compensated in case of infringement, but not – or at least not to the same extent – the chance to become healthy, which must be qualified as a pure economic damage 194. The unlawfulness of the perpetrator’s conduct could, therefore, arise in the field of tort only from the endangerment of the victim’s bodily integrity and accordingly, it would also be the detrimental change of health and not the loss of a chance which were decisive in establishing the duty to compensate. Mäsch 195 takes this into consideration in that he generally only recognises a duty to compensate for destruction of a chance in the field of contractual liability, where he takes the existence of contractual duties to preserve chances as a starting point.

However, basing the claim on the chance also presents other significant prob- 5 / 99 lems 196: the overcoming of those difficulties which can be mastered with the doctrine of the loss of a chance requires the application of an objective-abstract damage assessment justified by the notion of the continuing effect of the right ( Rechtsfortwirkungsgedanken ). The doctrine of loss of a chance is supposed to

block out precisely the – improvable – future development and takes as its sole basis the chance at the point in time of the faulty conduct. This is only possible by not taking the subjective pecuniary loss calculated according to the difference

191In more detail Koziol, Generalnorm und Einzeltatbestände als Systeme der Verschuldenshaftung: Unterschiede und Angleichungsmöglichkeiten, ZEuP 1995, 359.

192See, eg, Honsell, Schweizerisches Haftpflichtrecht4 ( 2005 ) § 4 II; Widmer, Switzerland, in: Koziol, Unification: Wrongfulness 117 f.

193See the individual country reports and the summary in Koziol, Unification: Wrongfulness.

194Cf Mäsch, Chance und Schaden 295 ff.

195Mäsch, Chance und Schaden 237 ff, 294 ff.

196On the following cf already Koziol, Schadenersatz für verlorene Chancen ? ZBJV 2001, 902 ff.

method as a basis, since this calculation is based on the hypothetical development of the pecuniary interest in the absence of the damage event and would thus involve precisely the difficulties which it intends to avoid. The doctrine of loss of a chance can, therefore, only attain its objective if it is based solely on the point in time of the tortfeasor’s faulty conduct and does not consider the future development. Accordingly, Mäsch 197 speaks quite correctly of a » momentary snapshot «. An assessment of the positive damage based on the point in time of the injury, and disregarding the future development, is in fact known to Austrian law ( § 1332 ABGB ) 198, but is rejected under German law 199 and can thus of course not be drawn on selectively either, just for the cases of loss of a chance.

5 / 100 But even in the event that an objective-abstract assessment based on the point in time of the injury is recognised, further substantial problems remain, making it appear highly doubtful that the doctrine of loss of a chance can really attain its goal. The objective-abstract assessment of damage is based on the notion of the continuing effect of the right ( Rechtsfortwirkung ) and requires as its object an independent interest with pecuniary worth which has a market value. So solving the situation by using the chance destroyed as a basis does not work if this chance does not constitute a pecuniary interest with a market value. This requirement has not been satisfied, however, if the chance is not yet clear and secure enough to be perceived as a separate, independently evaluable interest on the market.

Moreover, the limited effectiveness of this approach as a solution is demonstrated also in cases such as the following 200: a farmer ordered a pesticide, which had it been used in time might have been able to save his harvest which was infested by pests. The supplier delayed with the delivery so that pest control was started too late; it can no longer be ascertained whether the plants would have been saved had the pesticide been delivered on time. This case does not concern the loss of a chance which constituted an independent pecuniary good, but instead negative effects on property. This is why the claim cannot be based on the value of the chance of saving the plants according to its probability; rather the loss of property is decisive. However, the thorny problem of unclear causation arises when it comes to awarding compensation in this respect.

197Mäsch, Chance und Schaden 293. He argues, however, that this kind of » snapshot « cannot be a good starting point for a claim to compensation. This assertion, nonetheless, means he cannot solve the problem triggered by the impossibility of clarifying the causation question – as shall be discussed below.

198Neuner, Interesse und Vermögensschaden, AcP 133 ( 1931 ) 277 ff; further references in Koziol, Haftpflichtrecht I3 no 2 / 56 ff.

199Esser / Schmidt,SchuldrechtI / 28 § 32III;Lange / Schiemann,Schadensersatz3 30 f,248 ff.However,see, eg,F.Bydlinski,Schadensverursachung24 ff,andLarenz,LehrbuchdesSchuldrechtsI14( 1987 )§ 29Ib.

200Already mentioned in Koziol, Europäische Vertragsvereinheitlichung und deutsches Schadens­ recht, in: Basedow ( ed ), Europäische Vertragsrechtsvereinheitlichung und deutsches Recht ( 2000 ) 200.