Экзамен зачет учебный год 2023 / Koziol_BasicQuestions_Germanic

D. Delimitation of protected interest

When it comes to delimiting the protective scope of the interests recognised by 6 / 14 the legal system, it must be kept in mind that countervailing interests are at issue 32.

When the legal system grants protection to the rights and interests of one person, it thereby requires all other persons to respect this area. The holder of a protected interest is not required to tolerate interferences; he can take actions for preventive injunctions and exercise his rights of self-defence. In consequence, every time the legal system recognises a protected area this means everyone else’s freedom is accordingly limited 33. The definition of protected areas thus requires that the countervailing interests be weighed up in a value judgement: on the one hand,

32Cf Alexy, Begriff und Geltung des Rechts ( 1992 ) 120.

33This aspect was emphasised again recently by Peukert, Güterzuordnung als Rechtsprinzip ( 2008 ) 895 ff, in explaining the question of recognition of property rights; further Wilhelmi, Risikoschutz 12 ff, 230 ff.

Austrian Draft has largely leaned on these results ( § 1293 ( 2 ) and ( 3 ) ), and even in academic literature, corresponding attempts are increasingly being made 37.

34Larenz / Canaris, Schuldrecht II / 213 §75 I 1; van Dam, Tort Law 715 f; Schilcher, Der Regelfall als Verbindung von Tatbestandsmodell und Beweglichem System, Koziol-FS ( 2010 ) 869 ff.

35Cf also on this Koziol, Conclusions, in: Koziol, Unification: Wrongfulness 132.

36See on this Spickhoff, Gesetzesverstoß und Haftung ( 1998 ) 16 ff, 24 ff, 49 ff.

37In recent times, eg, by Wilhelmi, Risikoschutz 230 ff.

It must be emphasised that the extent of the protection depends on whether one or more factors are fulfilled and what weight they are accorded; furthermore, the interplay with other factors is also decisive. As the protective scope depends on the total weight of all the factors, it is certainly possible that even high-rank- ing interests do not enjoy any protection if the countervailing interests outweigh them. Thus, for example, a threatened impairment to health may be very minor ( common cold ), but the pecuniary disadvantage to the relevant actor may be enormous if he is required to respect the health of others to the outermost limits.

E. Protection against insignificant infringements ? 38

damages. In Swiss law it can be inferred from the ban only on » excessive impacts « ( Art 684 ( 1 ) ZGB ) that neighbours must tolerate moderate emissions 41.

38Already in more detail on this Koziol, Geringfügigkeitsschwellen im Schadenersatzrecht ? Bucher-FS ( 2009 ) 419 ff.

39On the little significance of the principle in Roman law see Klingenberg, Minima non curat praetor, Knütel-FS ( 2009 ) 559 ff; idem, Das modicum-Kriterium, Savigny-Z 126 ( 2009 ) 187 ff.

40On this PEL / von Bar, Liab Dam, Chapter 6 Art 6 : 102, Comments.

41 Rey in BSK, ZGB II4 Art 684 no 1.

6 / 20 Further, in respect of product liability Directive 85 / 374 / EEC provides in Art 9 lit b ) for a threshold of € 500 in cases of damage to property. Accordingly, the national legal systems also stipulate such thresholds in their laws on non-fault- based product liability ( § 2 of the Austrian, § 11 of the German and Art 6 of the Swiss Product Liability Acts ). As a result of these provisions, damage to property that falls below the given threshold is not compensated pursuant to the strict product liability rules. As compared with an actual de minimis rule, however, there is a difference in that not only will trivial damage be disregarded but even serious damage is not compensated in full due to the imposition of the threshold.

6 / 21 Besides this, it is very often acknowledged that there is a de minimis threshold for the compensation of non-pecuniary damage in the case of infringements of personality rights 42. For instance, Art 49 OR only provides for satisfaction in the case of interference with personality rights if » the gravity of the injury justifies such « 43.

In Germany, on the other hand, the attempt to include a de minimis threshold in the amended version of § 253 ( 2 ) BGB was ultimately abandoned 44; nonetheless, it was assumed that the courts would be able to observe the minimal threshold by reference to the » equity « of the compensation 45. Moreover, a grave interference continues to be required in the case of violations of general personality rights not covered by § 253 BGB 46.

In Austria, numerous individual provisions explicitly limit the compensation of non-pecuniary losses to gross violations ( § 150 ( 3 ) PatG; § 53 ( 4 ) MarkSchG; § 34 MuschG; § 41 GMG; § 16 ( 2 ) UWG 47 ). Accordingly, courts also only award compensation of the non-pecuniary harm for infringements of the Copyright Act under § 87 ( 2 ) UrhG in the case of very sensitive offences 48.

Ultimately it should be noted that under § 1316 ( 2 ) Austrian Draft » insignificant harm « is not to be compensated. The insignificance of harm must be ascer-

42See Karner / Koziol, Ersatz ideellen Schadens 36 ff with additional references.

43Art 49 sec 1 OR: » Any person whose personality rights are unlawfully infringed is entitled to a sum of money by way of satisfaction provided this is justified by the seriousness of the infringement and no other amends have been made.«

44On this G. Wagner, Das Zweite Schadensersatzrechtsänderungsgesetz, NJW 2002, 2056.

45See on this Oetker in MünchKomm, BGB II5 §253 no 29.

46Settled case law of the BGH, see in particular BGHZ 26, 349 ( » Gentleman rider case « – Herren­ reiterfall ); BGHZ 35, 363 ( gingseng root case ); BGHZ 39, 124 ( television announcer ); BGHZ 128, 1 ( Caroline von Monaco I ); on this Rixecker in MünchKomm, BGB I / 15 § 12 Anh no 226. Critical Funkel, Schutz der Persönlichkeit durch Ersatz immaterieller Schäden in Geld ( 2001 ) 192 f with additional references; Witzleb, Geldansprüche bei Persönlichkeitsverletzungen durch Medien ( 2002 ) 105 ff.

47See OGH 4 Ob 126 / 89 in SZ 62 / 192; 4 Ob 135 / 90 in ÖBl 1991, 58; 4 Ob 49 / 95 in MR 1996, 74 = ÖBl 1996, 134.

48OGH 4 Ob 101 / 93 in SZ 66 / 122 = MR 1994, 239 ( W. Michael ) = ÖBl 1993, 279; 4 Ob 281 / 98x in MR 1998, 345 ( W. Michael ); 4 Ob 175 / 08a in MR 2009, 81.

tained according to the criteria cited in the first sentence of this provision 49: the question of whether damages are to be awarded depends on the significance of the damaged good, the objective traceability, its extent and the length in time of the impairment as well as the weight of the grounds for liability. Hence, compensation shall be awarded for impairments that are not classifiable as serious only if their triviality is balanced by the weight of other factors. Para 3 of this provision cites, for example, results of such balancing, for instance, based on the rank of the damaged good and the objective transparency – in the case of bodily injury damages for pain and suffering must always be paid.

49Christandl / Hinghofer-Szalkay, Sinn und Funktion einer gesetzlichen Erheblichkeitsschwelle im Nichtvermögensschadensrecht, JBl 2009, 284 ff, in their criticism of the Austrian Draft wrongly equate insignificant damage with minimal damage and thus overlook the fact that no rigid, absolute de minimis threshold applies to insignificant damage ( thus 294 ) and that instead the interplay of different criteria is decisive. Examples for the result of this weighing up are provided by para 3 of § 1316 Austrian Draft. According to this, damages for pain and suffering must certainly be paid in the case of bodily injury, ie even when the damage is minor; hence the criticism of the exclusion of compensation of minimal damage in the case of bodily injury is base-

less. In fact, the Austrian Draft provides for precisely the flexible de minimis threshold adaptable to the weight of the individual material factors for which Christandl / Hinghofer-Szalkay ( ibid 294 ) call.

50Säcker in MünchKomm, BGB VI5 § 906 no 30.

51See Säcker in MünchKomm, BGB VI5 § 906 no 2.

52Taschner, Produkthaftung ( 1986 ) Art 9 no 17.

53Schmidt-Salzer / Hollmann, Kommentar EG-Richtlinie Produkthaftung I ( 1986 ) Art 9 no 58.

why it is only reasonable to curtail the victim’s claims in this manner when it comes to property damage caused by defective products, and why other damaging parties do not also enjoy such favourable treatment is not even asked.

6 / 24 The notion of social adequacy is also used to justify the requirement for a threshold of significance when it comes to the compensation of non-pecuniary damage – as in the law of neighbours – insofar as mere disagreeableness does not exceed a certain threshold of significance, it must be attributed to the general risks of life 54 and does not give rise to any sanctions under the law of damages. Stoll 55 points out that everybody must be expected to accept a certain degree of emotional distress as part of his participation in social life. Any other view would lead to boundless extension of liability and an inacceptable restriction of general freedom of movement as well as flood the courts hopelessly with trifling matters.

6 / 25 One major reason for the reticence in compensating non-pecuniary damage is also that it is very hard to determine whether and to what extent someone has suffered non-pecuniary harm. For this reason, the recoverability of such harm is contingent on a certain minimum degree of objectifiability, which, however, is not sufficient in cases of pure emotional distress 56. Furthermore, F. Bydlinski 57 points out that simple emotional injury is largely dependant upon the will of the victim; a duty to compensate all injuries of this type would promote self-pity and inability to cope. Merely negative emotions, which upset one, impair one’s sense of wellbeing and inspire anger, are quite simply an unavoidable part of everyday life; therefore, the arousal of such does not in principle involve any consequences under tort law 58.

Thus, it may be stated as a general principle that compensation for non-pecuni- ary damage only enters into consideration when there are significant infringements of personality rights 59, but it must be remembered that the gravity of the infringement can be substituted by especially strong grounds for liability on the side of the damaging party. Consequently, targeted interferences must not be tolerated without indemnification even if there is no grave impairment of a clearly defined personality right. Hence, even mere emotional distress can be compensable

54Cf on this Mädrich, Das allgemeine Lebensrisiko ( 1980 ); Deutsch, Das » allgemeine Lebensrisiko « als negativer Zurechnungsgrund, VersR 1993, 1041 ff.

55Empfiehlt sich eine Neuregelung der Verpflichtung zum Geldersatz für immateriellen Schaden ? Gutachten, 45. Deutscher Juristentag I / 1 ( 1964 ) 143.

56F. Bydlinski, Der Ersatz ideellen Schadens als sachliches und methodisches Problem, JBl 1965, 243 f; idem, System und Prinzipien 223; Koziol, Haftpflichtrecht I3 no 11 / 10; Karner, Ersatz ideeller Schäden 79 f; see already Stoll, Gutachten 45. DJT I / 1, 143 f.

57JBl 1965, 243; cf also Stoll, Gutachten 45. DJT I / 1, 143.

58Reischauer in Rummel, ABGB II / 13 §1325 no 1.

59See F. Bydlinski, System und Prinzipien 224, rightly with the supplement » and in any case when it comes to bodily injury «. Likewise Stoll, Gutachten 45. DJT I / 1, 144.

if the damaging party acted specifically in order to cause such non-pecuniary damage or if the damage was inflicted by an immoral act 60.

60Koziol, Haftpflichtrecht I3 no 11 / 10; Karner, Ersatz ideeller Schäden 79 f.

61See Karner / Koziol, Ersatz ideellen Schadens 40 f.

62Cf Karner, Ersatz ideeller Schäden 70.

63Danzl, Schmerzengeldansprüche nach HWS-Verletzungen im Strassenverkehr, Dittrich-FS ( 2000 ) 723.

64Brehm in Berner Kommentar, OR VI / 1/3 / 13 Art 47 no 5, 27, 29, 161 ff; Hütte, Art 47 OR – Genugtuung ? Versuch einer Anleitung zur Harmonisierung der Genugtuungsentschädigungen, SJZ 1974, 275; Schnyder in BSK, OR I4 Art 47 no 13; Tercier, L’ évolution récente de la réparation du tort moral dans la responsabilité civile et l’ assurance-accidents, SJZ 1984, 56. BGE 110 II 163, 166.

65Hütte, Genugtuungsrecht im Wandel, SJZ 1988, 176.

4. A general de minimis threshold for pecuniary damage ?

6 / 29 In the field of pecuniary damage, the short overview above ( no 6 / 19 f ) has shown that a significance threshold is recognised in the law of neighbours and product liability law.

As far as the law of neighbours is concerned, it seems that the significance threshold is justified by the fact that very normal life events and processes can easily lead to an inconvenience of the neighbour and it would be an unreasonable limitation of freedom of movement if everyday life had to be directed at not encroaching upon the neighbour in any even minimal way. Without doubt, it also works in the interest of peaceful co-existence if all who are part of the neighbourhood are required to exercise a certain tolerance – which ultimately benefits them all mutually – and their often long-term relationships are not strained by continual litigation. Thus, the following ideas play a decisive role in this respect:

The often lengthy co-existence within a community relationship, which makes peaceful co-existence particularly important; the hindrance of the economically usefully enjoyment of property otherwise due to excessive duties to consider the interests of the neighbour; the unreasonable limitation of freedom of movement by extensive duties of care, in particular also in the private sphere, which should serve the development of the personality and also relaxation; the mutual high risk of inconveniencing the neighbour in everyday life and thus of triggering defensive and compensation actions; the » trade-off « of inconveniences tolerated on both sides seen over the long-term.

extent. Furthermore, another argument against a general significance threshold for pecuniary damage, like that for non-pecuniary damage, as suggested by the Study Group 69, is that there can be no issue of having to check self-pity – which is always subject to influence at least to some degree – and reasonably requiring the victim to » swallow his anger «, as monetary losses are always palpable. Thus, the issue is whether the victim or the damaging party should have to bear a financial burden. If all grounds for liability are fulfilled, then everything speaks for having the damaging party bear the damage and there is no good reason for making an

66Cf Selb, Schädigung des Menschen vor der Geburt – ein Problem der Rechtsfähigkeit ? AcP 166 ( 1966 ) 76 ff; S. Hirsch, Children as Victims under Austrian Law, in: Martín-Casals, Children II 9.

67Tuor / Schnyder / Schmid / Rumo-Jungo, Das Schweizerische Zivilgesetzbuch12 ( 2002, Nachdruck 2006 ) 469.

68This rule applies under §§ 105 and 161 HGB also in respect of general partnerships ( OHG ) and limited commercial partnerships ( KG ).

69On this Schmidt-Kessel, Reform des Schadenersatzrechts I ( 2006 ) 172.

exception to the principle of compensation in the case of minor damage 70; one could even say, on the contrary, that in the case of small compensatory amounts there is even less reason to free the damaging party from liability.

6 / 33 Moreover: whereas objective measurement is necessary in the case of nonpecuniary damage because the subjective non-pecuniary injuries are not quantifiable, it is also logical to proceed from the comparability of the immaterial situation for all victims and in general to assume a – nonetheless elastic – bagatelle threshold, which applies to all victims equally. Pecuniary damage, on the other hand, can be measured precisely; above all, however, the economic situations of victims are extremely various. Therefore, self-evidently it cannot be assumed that the exclusion of compensation for minimal damage would affect all victims in a like manner 71. Thus, a general de minimis threshold as to amount would be unjustifiable because it would hit victims in difficult financial circumstances substantially harder than better-off victims 72. On the other hand, distinguishing cases according to financial circumstances would lead to well-off victims always having to bear a more or less substantial deductible. However, deviating from the general principle of compensation in the case of one group of victims on such a basis is out of the question; such a deviation could only be appropriate in exceptional cases and under consideration of both the weight of the respective grounds for liability and the capacity of those concerned to bear the economic burden ( wirtschaftliche Tragfähigkeit ) ( cf Art 10 : 401 PETL ).

6 / 34 As far as product liability is concerned, it was established that there are no good reasons for making an exception to the principle of compensation. Nevertheless, in this case the deductible is prescribed by the relevant Directive; in the field of fault-based liability not covered by the Directive, on the other hand, no such limitation on the claims of victims is to be recognised.

In this area, as otherwise, the usual inhibitions counteract any overwhelming litigation of minimal claims for compensation: on the one hand, the general pro-

70This could be considered, if at all, with the aim of avoiding an over-burdening of the courts, however, the efforts and costs for the claimant means that court action is only taken anyway when compensation of the damage outweighs these burdens.

71This fundamental difference between pecuniary and non-pecuniary damage is overlooked by Christandl / Hinghofer-Szalkay, Sinn und Funktion einer gesetzlichen Erheblichkeitsschwelle im Nichtvermögensschadensrecht, JBl 2009, 290 and 296.

72The Study Group ( see PEL / von Bar, Liab Dam, Chapter 6, Art 6 : 102, Comments 2 ) seeks to take this into account, emphasising that » economic considerations are not decisive, but rather the legally protected interests of those involved, the type of grounds for attribution and the other conditions of damage causation.« Thus, it is not trivial damage if a child’s old and almost economically worthless doll is destroyed or when the dog of an old lady living alone is killed. However, this means that non-pecuniary values are regarded as decisive when it comes to whether material damage is trivial, which appears somewhat contradictory. Moreover, the victim is exposed to a substantial litigation risk due to the uncertainty of the term » trivial damage «, which does not appear appropriate.