Экзамен зачет учебный год 2023 / Koziol_BasicQuestions_Germanic

longer bring any claim for damages against the second damaging party 232. This idea is extremely problematic, however,233 and appears only to lead to the first damaging party being liable for the loss of the compensation claim against the second perpetrator, or not, for example, if such was insolvent. Moreover, it is highly questionable whether the removal of the claim for damages against a hypothetical damaging party is covered by the protective purpose of the norm that prohibited the first damaging party from destroying the thing. Ultimately, only a pseudosolution is achievable on the basis of this idea: it could be asserted with exactly the same justification that the second perpetrator had frustrated the compensation claim based on the damage to property inflicted by the first perpetrator; thus, leaving the question of why precisely the first perpetrator should be liable for the loss of a compensation claim but not the second perpetrator. Ultimately, the approach fails completely when there are two hypothetical perpetrators 234.

232This is taken as a base, eg, by Kramer, Das Problem der überholenden Kausalität im österreichischen Schadenersatzrecht, DRdA 1969, 144 ab.

233On this Koziol, Haftpflichtrecht I3 no 3 / 64.

234Thus, also F. Bydlinski, Schadensverursachung 78.

5 / 123 However, the following considerations may help towards reaching an appropriate solution: as regards the first perpetrator, all liability criteria were satisfied at first at the time the damage was inflicted, including that of causation – which was only diluted to potential causation by the subsequent second event. The full liability of the first perpetrator is, nonetheless, not terminated in principle by a second event triggering liability, rather the first perpetrator continues to be liable and the second perpetrator is jointly and severally liable with him. If the second event does not satisfy the criteria for liability, then the first perpetrator remains fully liable to the victim, the only difference is that no second party is liable besides him and, thus, he loses possibilities of recourse against such second liable party. The risk as to whether there are further liable parties and whether recourse claims exist and are enforceable always affects the perpetrator, who is fully responsible for damage: the fact that no other perpetrator is liable and, thus, that the one liable party has no claims of recourse, or that existing recourse claims are not enforceable, cannot exonerate a responsible perpetrator. The liability of the second perpetrator is irrelevant to the establishment or termination of the first perpetrator’s liability; it is only material in relation to any internal relief based on recourse claims. Insofar, it may be said that the question of whether there is a further liable party falls within the first perpetrator’s sphere of risk and not that of the victim.

III.  Summary

5 / 124 As already highlighted by F. Bydlinski 235, it is appropriate to affirm liability in cases of alternative, cumulative and superseding causation, even though there is no conditional link according to the conditio-sine-qua-non formula. However, this does not mean that the causation requirement is completely disregarded 236: instead, the event triggering liability must be highly likely to cause the damage which is at issue. Causation must, therefore, still be demonstrated albeit in the diluted form of potential causation; however, as a result of this attenuation of the causation required, it is only sufficient as a foundation for liability provided it is associated with a high degree of specific risk, ie with strong adequacy. It must always be considered that a potential causer can, of course, only be liable if all the

235F. Bydlinski, Causation as a Legal Phenomenon, in: Tichý, Causation 17 ff.

236Attempts are also made to surmount these difficulties by another type of examination, see, eg, Wright, Causation in Tort Law, 73 Cal L R 1985, 1788 ff, who proposes the » Necessary Element of a Sufficient Set « test. On this see, eg, Röckrath, Kausalität 20 f, 32 ff.

decisive as regards determining whether the problem is one of protective purpose or causation, reveals the close relationship between the two problem areas 237. However, even cases of damage inflicted by actions concern the same value judgement issue in cases of the lawful alternative conduct as those of superseding causation, namely whether the real causer should be exonerated by an event not triggering liability that did not have any real impact. The question of whether the damaging party who acted unlawfully – pursuant to the purpose of the norm applicable to his conduct – should also be liable for damage caused or potentially caused by him but which would otherwise have been brought about by an event not triggering liability, thus arises in the case of hypothetical causation and lawful

237Koziol, Rechtmäßiges Alternativverhalten – Auflösung starrer Lösungsansätze, Deutsch-FS ( 1999 ) 179 ff. In this sense now also Grechenig / Stremitzer, Der Einwand rechtmäßigen Alternativverhaltens – Rechtsvergleich, ökonomische Analyse und Implikationen für die Proportionalhaftung, RabelsZ 73 ( 2009 ) 336 ff.

alternative behaviour alike and should accordingly be decided alike as there are no relevant differences between the two areas that would provide a basis for treating them differently.

The references 238 to the parallels of the decisive value judgements are, therefore, well-founded. Consequently, it should also be possible vice versa to deal with the problem of superseding causation not in the context of causation but with respect to the protective purpose of the norm and to ask the same question in respect of lawful alternative behaviour and superseding causation 239: the issue is always a value judgement as to whether, according to the purpose of the violated conduct rule, the real causer, who acted unlawfully and culpably, should also be liable for the damage in the event that such damage would also have been brought about anyway by an event for which he is not accountable. This underlying value judgement issue must, therefore, be the same regardless of the dogmatic categorisation of the question so that, for example, the relevant notion of continuing effect of the right may be applied as part of both approaches even when the damage is assessed objectively.

238See Riss, Hypothetische Kausalität, objektive Berechnung bloßer Vermögensschäden und Ersatz verlorener Prozesschancen, JBl 2004, 430 f; Gebauer, Hypothetische Kausalität und Haftungsgrund 221 ff; Oetker in MünchKomm, BGB II5 § 249 no 212.

239See already Koziol, Deutsch-FS 183.

171

Chapter 6

The elements of liability

conduct, » is in principle self-evident from a legal and ethical point of view because it is based on a legal condemnation «. In his great book 2 on the Roman foundations of civil law, Zimmermann, again, persuasively argues that in the law of tort the terms wrong and fault are of fundamental significance. Finally, a look around at other legal systems shows that » misconduct « and thus » wrongfulness « – albeit subject to very different understandings in the different systems – does in fact play a decisive role in all legal systems when it comes to establishing liability 3: in the field of fault-based liability, the perpetrator is only liable for the damage caused if his conduct was in some way incorrect.

The consensus with which the significance of wrongfulness is affirmed from the legal-ethical, legal-historical and comparative law perspective when it comes to the liability for damage and, therefore, the establishment of liability, is starkly in contrast to the diversity of views as to what wrongfulness actually means and the fundamental principles it is based on.

1Die Gefährdungshaftung im Lichte der neueren Rechtsentwicklung, JBl 1995, 16. Cf also F. Bydlinski, System und Prinzipien 189 ff; von Caemmerer, Das Verschuldensprinzip in rechtsvergleichender Sicht, RabelsZ 42 ( 1978 ) 5 ff.

2Obligations 902, 907.

3See on this Koziol, Conclusions, in: Koziol, Unification: Wrongfulness 129 ff. However, cf also the somewhat sceptical discussion by Horwart, The General Conditions of Unlawfulness, in: Hartkamp / Hesselink / Hondius / Mak / du Perron ( eds ), Towards a European Civil Code4 ( 2011 ) 845 ff, in particular 874 ff.

B. The different concepts of wrongfulness

6 / 2 Even a quick glance reveals how different the understanding of the liability criterion » wrongfulness « is in the individual legal systems 4. Some countries even decline to distinguish between wrongfulness and fault; this applies in particular to France 5. Above all, however, the term wrongfulness is accorded extremely different levels of significance. This leads, eg, to most legal systems only regarding wrongfulness as significant in the field of fault-based liability, though it is also considered significant particularly in Switzerland 6 and sporadically in Germany 7 in the field of strict liability. Likewise, the Swiss Draft of a general part of the Swiss Tort Law regards wrongfulness as a very general requirement for any kind of liability 8.

6 / 3 Yet even in the field of fault-based liability, there are very different views as to what wrongfulness means. This can even be demonstrated with reference to two relatively closely related legal systems such as the Austrian and German: according to the » theory of wrongfulness of conduct « ( Verhaltensunrechtslehre ),9 which prevails in Austria, wrongfulness arises from a violation of rules or prohibitions laid down by the legal system. The assessment of wrongfulness always relates to human behaviour and not to a damaging result, because wrongfulness means nothing other than the finding that there has been infringement of a rule. Legal rules can only be infringed by the behaviour of legal subjects, as they alone are the addressees of such rules. Accordingly, a result or a state of affairs may not be referred to as wrongful; a result can be evaluated as undesired but cannot be required or forbidden in the same sense 10. An example: if someone speeds down the piste on skis without any control and rams another person, who is skiing carefully, from behind, then the result, namely the injury to both skiers, is certainly undesired. Yet only in the case of the careless skier going too fast can we speak of wrongful conduct. It is true that the careful skier also caused the damage suffered

4An overview can be found in Koziol in: Koziol, Unification: Wrongfulness 129 f. See also G. Wag-

10This is called for very forcibly by Münzberg, Verhalten und Erfolg 3, 53, 61 ff, also in respect of German law.

already indicated – is not drawn at all in France. In some countries there is a very clear distinction; in others the lines are blurred. If, as in German law 16, an objective fault standard is applied, there is hardly any difference in the case of indirect infringements between relevant objectively unlawful behaviour and subjective negligence as far as the conduct of a person with capacity to commit torts is concerned. This is different, for example, in Austria 17 and in the Netherlands 18, where

11This still applies today in particular for intentional injury to legal goods, see Brüggemeier, Haftungsrecht 37 f.

12Against this, however, once again recently by Jansen, Das Problem der Rechtswidrigkeit bei § 823 Abs. 1 BGB, AcP 202 ( 2002 ) 544 ff, who, however, in a strange contrast to taking the result as a basis argues that only the results of actions must be taken into account; cf further Jaun, Haftung für Sorgfalts­pflichtverletzung ( 2007 ) 391 ff.

13See Larenz / Canaris, Schuldrecht II / 213 §75 II 3 b.

14On all this G. Wagner in MünchKomm, BGB V5 § 823 no 5 ff with additional references.

15Besides Münzberg, Verhalten und Erfolg, more recently Wilhelmi, Risikoschutz 112 ff, 141 ff, and Bernhard, Das rechtsverletzende Handeln als Grundlage der deliktischen Haftung in § 823 Abs. 1 BGB, Picker-FS ( 2010 ) 83 ff, are worthy of mention.

16On this in particular Deutsch, Fahrlässigkeit2 229 f, 282.

17Koziol, Haftpflichtrecht I3 no 5 / 35 ff.

18Cf Spier, The Netherlands. Wrongfulness in the Dutch Context, in: Koziol, Unification: Wrongfulness 88 f.

25Jansen, Struktur des Haftungsrechts 561 ff in particular.

26Jansen, AcP 202 ( 2002 ) 544 ff, at first gives the impression of supporting another view; however, he simply shifts the decisive considerations as regards liability to the question of grounds for excluding liability; cf on this Jansen, Struktur des Haftungsrechts 581 ff.

27Deutsch, Haftungsrecht2 no 237; Larenz / Canaris, Schuldrecht II / 213 §75 II 3 b.

28See on this also below no 6 / 18 ff and 27.

of abstraction still does not imply any serious accusation against the perpetrator and thus cannot justify imposing liability for the damage on him, it is nonetheless sufficient at least to trigger lesser legal consequences, namely the recognition of defensive rights, ie rights to act in self-defence and preventive injunctions: if protected interests are endangered and thus the elements of an offence are realised, the person at risk has a right to defend himself against the infringement. Furthermore, suchlike abstract undesired situation can trigger reparative injunctions and also actions for unjust enrichment by interference ( Eingriffskondiktionen, Verwendungsansprüche ). Finally, in the event that widely protected interests, ie the so-called absolute rights, are infringed, fulfilment of the factual elements of wrongfulness is an indication of careless behaviour.

6 / 10 At the second level of incorrectness of conduct it must be examined more closely whether the damaging party engaged in conduct that must be qualified as careless in the given situation and measured according to an objective standard 29. In this respect the deficiency of the conduct is still examined at an objective but nonetheless far more concrete level. This step corresponds largely to the » breach of duty « theory 30 recognised in English law, as well as the theory of wrongfulness of the conduct advocated in some legal systems of Continental Europe.

The theory of wrongfulness of the conduct is repeatedly criticised for failing to distinguish between wrongfulness and fault. However, this criticism is misplaced 31: the standard for wrongfulness is objective, whereas according to the basic principles fault is assessed according to a subjective yardstick. This has implications even in those legal systems that take an objective standard of fault as a basis ( see below no 6 / 83 ff ): children and the mentally ill may act in an objectively careless manner even though no subjective fault is at hand due to their lack of capacity to understand.

6 / 11 At this level of objective carelessness, the incorrectness of the conduct in question attains such a significance that it may already be sufficient in combination with less significant elements to trigger liability for the damage caused. Thus, objectively careless conduct may be sufficient to establish liability in combination with increased degree of danger; this is the case, for instance, as regard the liability of the owner of a defective building or an animal ( §§ 1319, 1320 ABGB ). Furthermore, the objectively careless behaviour of children or mentally ill persons may lead to full or partial liability under consideration of additional factors, above all the economic circumstances ( § 1310 ABGB, § 829 BGB ).

29It is clearly a misunderstanding when Jansen, AcP 202 ( 2002 ) 544 FN 139, assumes that according to my view liability always requires wrongful conduct; this requirement is only valid in the field of liability for misconduct, naturally it does not apply when it comes to strict liability.

30Van Dam, Tort Law 189 f; Koziol, Introduction, in: EGTL, Principles 25; W.V.H. Rogers, Winfield & Jolowicz on Tort17 ( 2006 ) 337 ff.

31See Koziol, Haftpflichtrecht I3 no 5 / 42 and 44.