Экзамен зачет учебный год 2023 / Koziol_BasicQuestions_Germanic

hibition of chicanery ( the exercise of a right is not permitted if the only possible purpose is to cause damage to another ) and, on the other hand, as a rule, the risk involved in litigation is a factor which prevents most people from taking action for minimal claims. Moreover, it would be practically impossible to formulate a clear and easily applicable distinction for access to the courts without precipitating subjective unfairness.

Besides this it must also be remembered that there is in any case a general, 6 / 35 flexible de minimis threshold due to the requirement of violation of a duty of care:

it may be assumed that under normal circumstances there is no duty of care to avoid extremely minimal impairments to other people. Where the line is to be drawn depends of course on the relations between the factors decisive for determining whether there has been a violation of such duties, ie in particular on the rank of the endangered good, the extent of the threatened damage and also the reasonableness of requiring the damaging party to behave differently ( see below no 6 / 40 f ).

factual elements of the infringement are also fulfilled and thus the party at risk is also entitled to preventive injunctions; it is only the law of damages liability criterion of breach of duty of care that is not satisfied. The same applies when such

breach of duty of care is rejected due to the minimal nature of the impairment under consideration of further factors.

6 / 38 Thus, the type of de minimis threshold to be chosen by the legislator depends on what limitation it is intended to achieve:

If the protective scope of property should be subject to a general limitation, ie not only compensation claims but also preventive injunctions should be excluded, then the acceptance of certain impairments must be stipulated, in other words the result must be taken as the starting point.

If, on the other hand, the intention is not to limit the protective scope but only the duty to compensate, then the duties of care should be restricted 73.

F.The objective conduct standards

1.Establishing the required standard of conduct

6 / 39 The starting point is the self-evident fact that the interest in as far as possible protection of one person’s goods is juxtaposed to the interest of all others in far as possible freedom of movement to develop ( freedom of action ) 74 and, thus, the issue is how to find the most appropriate balance between the conflicting interests.

The EGTL 75 has not only attempted to elaborate the factors material to the abstract scope of the protection of interests, but has also taken on the approach generally taken in England 76 and compatible with Wilburg’s concept and tried to set up a guide to elaborate the material factors justifying the specific breach of duty of care to be established; § 1296 of the Austrian Draft largely follows the PETL77  .

6 / 40 Para 1 of Art 4 : 102 PETL begins with the somewhat vague statement that the required standard of conduct is that of the » reasonable person «. Nonetheless, this at least makes it obvious that it is not the perpetrator himself who serves as the yardstick and also not the average person or the statistically determined » Mehr­ heitsperson « ( » a person complying with the majority « ). The fact that a reasonable person is to be taken as the standard is significant, inter alia, because such person pursues not only his own interests but also keeps those of others in mind. Further, it must be highlighted that the hypothetical behaviour of a reasonable person in

73When corporate partners’ duties of care towards other partners are restricted, this is in part also based on the idea that those who join together in an association know each other and wish to accept each other the way they are; cf on this purpose of the rule Ulmer / Schäfer in MünchKomm, BGB V5 §708 no 1.

74Wilhelmi, Risikoschutz 67 ff.

75Widmer, Required Standard of Conduct, in: EGTL, Principles 76 ff.

76W.V.H. Rogers, Winfield & Jolowicz on Tort17 ( 2006 ) 253 ff; van Dam, Tort Law 194 ff.

77Cf on this Koziol, Schaden, Verursachung und Verschulden im Entwurf eines neuen österreichischen Schadenersatzrechts, JBl 2006, 775 f.

the given circumstances is to be taken as the basis, ie the actual specific circumstances do play a role 78.

The article goes on to list the relevant factors. Thus, required care standards are to be set higher in proportion to increased dangerousness 79. This depends, on the one hand, on the rank of the endangered good; a higher degree of care is appropriate towards the classical personality rights such as life, health and freedom than towards property or pure economic interests. A decisive role is also played of course by the gravity of the injury threatened to these goods and the dangerousness of the situation, ie the degree of probability of an injury.

On the other hand, the value of the interest pursued by means of the action 6 / 41 posing the risk must be taken into account. The greater this is, the less appropri-

ate a limitation of freedom of movement due to strict standards of care towards others seems appropriate. However, the gravity of the limitation on freedom of movement by observance of the duties of care must also be taken into account: in this respect the duty not to engage merely in specific conduct that poses a risk is less limiting than the duty to engage in certain conduct, as in this case the subject of the rule has no options at all. Furthermore, the consideration of third-party interests is all the easier and thus appears all the more reasonable, in proportion to the obviousness and clear delineation of such interests. Therefore, the duties to respect life, health and properties of others are stricter than those to respect third parties’ rights of claim or the interests of others in gaining profits or other pure economic interests or indeed non-pecuniary interests.

Also particularly important as regards determining the degree of care required is the closeness of the relationship between the parties involved. Finally, the costs and efforts required to avoid the damage play a decisive role in assessing the reasonableness of requiring a certain type of conduct 80.

2. The general significance of breach of duties of care in relation to liability for misconduct

The assessment of objective breach of duty of care besides fulfilment of the factual 6 / 42 elements of the offence is not only necessary when it comes to the infringement

78On this and on the normative correction leaving out self-inflicted ills see F. Bydlinski, System und Prinzipien 198.

79In detail on this Münzberg, Verhalten und Erfolg 141 ff; Widmer, Gefahren des Gefahrensatzes – Zur Problematik einer allgemeinen Gefährdungshaftung im italienischen und schweizerischen Recht, ZBJV 1970, 302 ff; on English law: W.V.H. Rogers, Winfield & Jolowicz on Tort17 253 ff; comparative law van Dam, Tort Law 806 ff.

80Cf van Dam, Tort Law 200 ff. On the influence exerted by the financial situation on the duties of care see Katzenmeier, Kostendruck und Standard medizinischer Versorgung – Wirtschaftlichkeitspostulat versus Sorgfaltsgebot ?, G. Müller-FS ( 2009 ) 237 ff with additional references.

of absolute rights, but also otherwise: if a protective rule, for instance, requires or forbids certain conduct in order to minimise an abstract risk, then conduct deviating from this certainly fulfils the factual elements of the infringement but does not necessarily objectively constitute breach of a duty of care 81. For instance, the driver of a motor vehicle fulfils the factual elements of the infringement in question if he fails to observe a stop sign totally obscured by a parked lorry, but in such case cannot usually be accused of any breach of duty of care.

6 / 43 It is possible to take the view that when assessing the duty to compensate, the damaging party’s fault will in any case be examined and rejected in this case as there was not even objective carelessness. Nonetheless, it still makes sense in this context to separate the assessment of objective breach of duty of care from that of fault 82, because the former is assessed according to an objective yardstick, whereas the latter is assessed subjectively. In this manner, for instance, the liability of persons without the capacity to commit torts based on a consideration of the economic circumstances according to § 1310 ABGB, could not be justified by fulfilment of the factual elements of the infringement alone, ie the failure to engage in the conduct abstractly required by the protective law, on the one hand, but on the other hand, subjective culpability would not be required either, instead precisely the objective carelessness would be at issue 83.

Similar applies when it comes to breaches of contract 84: the failure to render the promised performance fulfils the factual elements of non-performance; nonetheless, the obligee is in principle only liable if he acted carelessly. If the performance became impossible due to chance, there is no duty to compensate because there was also no breach of duty of care.

6 / 44 The distinction between non-compliance with abstract conduct requirements that are aimed at securing the protective scope of third-party interests in a general manner and the breach of objective duties of care may overlap largely with the distinction between » äußerer Sorgfalt « and » innerer Sorgfalt «. This pair of terms was developed by Engisch 85 for the field of criminal law and introduced by Deutsch 86 to the law of tort. The difficulty in comparing this approach with the ideas applied here arises, however, from the fact that the terms » äußere Sorgfalt « ( literally: exterior

81Esser / Weyers, Schuldrecht II / 28 §56 I; Karollus, Schutzgesetzverletzung 159 ff; Reischauer in Rummel, ABGB II / 13 §1311 no 6. Differentiating Spickhoff, Gesetzesverstoß und Haftung 202 ff.

82Cf on this Oswald, Analyse der Sorgfaltspflichtverletzung ( 1988 ) 91 ff, 100 ff.

83Cf OGH 6 Ob 553 / 81 in JBl 1982, 375; 7 Ob 533 / 84 in ZVR 1985 / 127; further OGH 2 Ob 36 / 95 in JBl 1996, 388; 391 ( Harrer ); 4 Ob 65 / 99h in JBl 1999, 604.

84On this Oswald, Sorgfaltspflichtverletzung 104 ff; Neumann, Leistungsbezogene Verhaltens­ pflichten ( 1989 ) 113 ff. Cf also Schermaier in HKK zum BGB II §§ 280 – 285 no 1 ff.

85Untersuchungen über Vorsatz und Fahrlässigkeit im Strafrecht ( 1930 ).

86Unerlaubte Handlungen, Schadensersatz und Schmerzensgeld3 ( 1995 ) no 30, 121, 226; idem, Haftungsrecht2 no 385 ff; idem, Die Fahrlässigkeit als Außerachtlassung der äußeren und der inneren Sorgfalt, JZ 1988, 993.

care ) and » innere Sorgfalt « ( literally: interior care ) are used in very different ways 87. Basically, however, this dichotomy also concerns a distinction between an act that only outwardly breaches a rule, ie fulfils the factual elements of the wrong, and conduct which is based on carelessness.

G. Special aspects of the wrongfulness of omissions

who creates a dangerous situation to undertake something to avert the danger ), they also provide for further duties under consideration of the proximity of the relationship, the gravity of the threatened damage and the reasonableness of taking action.

§ 1297 Austrian Draft has also extended the duty to actively prevent danger accordingly 92. For doing so, the Austrian Draft has not only earned hefty criti-

87See on this in detail Fabarius, Äußere und innere Sorgfalt ( 1991 ) 61 ff.

88Cf van Dam, Tort Law 206; Deutsch, Haftungsrecht2 no 108; Koziol, Haftpflichtrecht I3 no 4 / 60; P. Widmer, Ex nihilo responsibilitas fit, or the Miracles of Legal Metaphysics, JETL 2011, 139 f.

89Cf the country reports on Case 10 in: Koziol, Unification: Wrongfulness; further van Dam, Tort Law 205 ff; Magnus, Causation by Omission, in: Tichý, Causation 102 ff.

90See W.V.H. Rogers, Wrongfulness under English Tort Law, in: Koziol, Unification: Wrongfulness 52 ff. Quill, Affirmative Duties of Care in the Common Law, JETL 2011, 151 ff.

91See on this the commentary by Widmer, Duty to Protect Others from Damage, in: EGTL, Principles 86 ff.

92On this provision Fenyves, Haftung für schuldhaftes oder sonst fehlerhaftes Verhalten, in: Griss / Kathrein / Koziol, Entwurf 50 f; Koziol, Schaden, Verursachung und Verschulden im Entwurf

cism 93, but also support 94. According to the Austrian Draft, it is decisive in terms of a duty to act that there is a close relationship, opening of facilities to the public, a source of danger has been created or kept or there is gross disproportion between the threatened damage and the burden associated with preventing it. The afore-mentioned close relationship does not have to be a contractual or other legal type of special relationship, instead it may simply be a social relationship. Thus, ordinarily there is no contractual relationship between friends that go mountain-climbing together but the joint undertaking, the inter-dependency and the trust in the necessary help by the other leads to an increased duty to preserve such friend against damage also by actively doing something 95. The duties to act when facilities have been opened to the public or if a source of danger has been created or kept correspond largely with the approach usually taken up until now. The reference to the gross disproportion between the interests may seem somewhat less familiar. The following well-known case was in mind in this respect: B sees how K, who is blind, is walking directly towards an unsecured, deep pit, and B is aware that K may sustain extremely serious or even fatal injuries if he falls in. In the light of the circumstance that while K cannot protect himself against this risk in this context whereas B could save the health or life of K merely by shouting out to him, ie with very little effort indeed, there should be no doubt as to B’s duty to perform this action to save K 96. Widmer 97 writes in this sense:  » § 1297 of the Draft deserves unreserved approval for the positive duty of help in the case of threatened damage, which one could also call the › good Samaritan principle ‹. This is flawless fault-based liability for a violation of an elementary loyalty and solidarity requirement – the visible expression that not only are there human rights but also human duties.98 The law of tort need show no shyness in helping to make them into positive law.«

eines neuen österreichischen Schadenersatzrechts, JBl 2006, 776; idem, Liability for Omissions –

Basic Questions, JETL 2011, 132 f.

93Spielbüchler, Dankt der Gesetzgeber ab ? JBl 2006, 348 ff; with counter-criticism see Koziol, JBl 2006, 784 ff.

94Widmer, Der österreichische Entwurf aus der Sicht des Auslandes, in: Griss / Kathrein / Koziol, Entwurf 132; L. Tichý, Prävention im Haftungsrecht: Ansatz zu einer Revision, Koziol-FS ( 2010 ) 919 ff.

95Thus, rightly A. Michalek, Die Haftung des Bergsteigers bei alpinen Unfällen ( 1990 ) 48 ff.

96Thus, also much longer ago K. Wolff in Klang, ABGB VI2 18. Hence, the very different results in the individual country reports on Case 10 are rather astonishing in: Koziol, Unification: Wrongfulness.

97Widmer in: Griss / Kathrein / Koziol, Entwurf 132.

98Saladin, Menschenrechte und Menschenpflichten, in: Böckenförde / Spaemann ( eds ), Menschenrechte und Menschenwürde ( 1987 ) 267 ff.

H. Protection of pure economic interests 99

is liable for causing pure economic loss. The inclusive formulation of § 1295 ( 1 ) ABGB corresponds, on the one hand, with the elastic formulation used by the Austrian Supreme Court 102 to the effect that inflicting pure economic loss is wrongful and thus gives rise to liability for compensation if the interests of the damaging party are to be assessed as worth substantially less than those of the victim. On the other hand, the case law of the Supreme Court often expresses the very radical view that pure economic loss outside of obligations is only recoverable when so stipulated by a protective law or if the damaging party acted contra bonos mores 103. This is manifestly incorrect as the law itself expressly provides for the compensation of pure economic loss within the field of tort, for instance when false advice or misinformation is given knowingly ( § 1300 ABGB ) or someone is knowingly misled ( § 874 ABGB ). Moreover, numerous cases are recognised in case law and theory, in which the violation of pure economic interests triggers liability. Apart from the duties to compensate due to culpa in contrahendo, such duties –

99The following statements are based on my previous publications: Koziol, Compensation for Pure Economic Loss from a Continental Lawyer’s Perspective, in: van Boom / Koziol / Witting, Pure Economic Loss 141; Koziol / van Boom / Witting, Outlook, in: van Boom / Koziol / Witting, Pure Economic Loss 191; Koziol, Schadenersatz für reine Vermögensschäden, JBl 2004, 273; idem, Recovery for Economic Loss in the European Union, Ariz L Rev 48 ( 2006 ) 871.

100See Koziol, JBl 2004, 273 with additional references.

101More detail on this in the comparative law investigations: Banakas ( ed ), Civil Liability for Pure Economic Loss ( 1996 ); Bussani / Palmer ( eds ), Pure Economic Loss in Europe ( 2003 ); idem, The Frontier between Contractual and Tortious Liability in Europe: Insights from the Case of Compensation for Pure Economic Loss, in: Hartkamp / Hesselink / Hondius / Mak / du Perron ( eds ), European Civil Code4 945 ff; van Boom / Koziol / Witting, Pure Economic Loss. Cf also Faust, Der Schutz vor reinen Vermögensschäden – illustriert am Beispiel der Expertenhaftung, AcP 210 ( 2010 ) 555 ff.

1028 Ob 587 / 93 in SZ 66 / 82.

103Cf OGH 2 Ob 193 / 78 in SZ 52 / 93; 8 Ob 78 / 83 in SZ 56 / 199; 7 Ob 598 / 86 in JBl 1986, 650; 2 Ob 151 / 88 in SZ 61 / 279; 2 Ob 557 / 93 in SZ 67 / 17 = JBl 1994, 687; 1 Ob 251 / 05a in SZ 2006 / 53.

2. Reasons for limiting protection

6 / 49 One of the main arguments against comprehensive protection of pure economic interests is the incalculable number of the victims 106 and the incalculable extent

liberty and property, also shows that the rank of the good is material for the degree of protection afforded by the legal system 109. The core personality rights enjoy the most comprehensive protection; their rank derives from human rights

104 See on this Karner in KBB, ABGB3 § 1295 no 19.

105 OGH 5 Ob 262 / 01t in SZ 74 / 188 = ÖBA 2002, 824 ( W. Doralt ); 7 Ob 269 / 07w in ÖBA 2008, 584 f. As to German law see Zenner, Die zivilrechtliche Verantwortlichkeit des Abschlussprüfers für den Bestätigungsvermerk ( 2011 ) with further details.

106 Cf Koziol, Generalnorm und Einzeltatbestände als Systeme der Verschuldenshaftung: Unterschiede und Angleichungsmöglichkeiten, ZEuP 1995, 363 with additional references.

107 See the opera-singer example cited by Reinhardt, Der Ersatz des Drittschadens ( 1933 ) 96 ff.

108 See on this, eg, Fabricius, Zur Dogmatik des » sonstigen Rechts « gemäß § 823 Abs. I BGB, AcP 160 ( 1961 ) 273; Karollus, Schutzgesetzverletzung 48 f; Picker, Positive Forderungsverletzung und culpa in contrahendo – Zur Problematik der Haftung » zwischen « Vertrag und Delikt, AcP 183 ( 1983 ) 480 ff; OGH 1 Ob 516 / 88 in SZ 61 / 64. Comparative law references in Koziol, Conclusions, in: Koziol, Unification: Wrongfulness 132.

109 Comparative law references here too in Koziol in: Koziol, Unification: Wrongfulness 132; See also Koziol, Haftpflichtrecht I3 no 4 / 29.

conventions and fundamental rights. The in rem rights and the intellectual property rights are ranked somewhat lower. Pure economic interests, for example to obtain a profit or acquire a thing, come at the bottom of the hierarchy. This is an argument against far-reaching protection. Moreover, it must be considered that a person’s pure economic interests are juxtaposed not only by everyone else’s interests in as great as possible freedom of movement but also frequently the economic interests of said others, which occupy at least the same rank.

110For comparative law references see the works cited herein above no 6 / 48 FN 103.

111Koziol, Delikt, Verletzung von Schuldverhältnissen und Zwischenbereich, JBl 1994, 209 ff; idem, ZEuP 1995, 359 ff. See also Picker, AcP 183, 476 ff; idem, Vertragliche und deliktische Schadenshaftung, JZ 1987, 1052 ff.

the other on the basis of culpa in contrahendo, for pure economic loss which he caused by misrepresentation 112. This is especially interesting here because it does not represent contractual liability in the strict sense but instead liability in the interim area between contract and tort ( see above no 4 / 2 ff ). These duties of care also survive beyond the conclusion of the contract, whether such is valid or not 113, this again concerns the so-called » positiven Forderungsverletzungen «.

6 / 55 This willingness to recognise liability for pure economic loss extends also to other fields, in which there are close relationships or a special relationship. In particular, cases of the actual provision of information without contractual basis come to mind 114. This also applies to cases where someone who provides information is liable, in particular a hired expert if such is aware that third parties will rely on his statement and be guided by his explanation when it comes to making their decisions; furthermore if the information was also specifically intended for third parties 115. The issue of a prospectus 116 provides a classic example.

6 / 56 It is noteworthy that Austrian courts, taking their line from academic consensus, proceed on the basis that the protective scope of contracts to the benefit of third parties generally does not include the pure economic interests of the third parties 117. An exception is made when the main performance is rendered to the third party and thus, when such damage could only accrue to such. This is clearly because this prerequisite negates the argument about opening the floodgates of a boundless duty to compensate.

This indicates that the grounds for distinguishing between tort and breach of contract only apply in full to the core areas of such; they may or may not apply, in full or in part, in the interim areas ( cf above no 4 / 9 ff ). There is no sharp dividing line between the core areas of breach of contract and tort, instead there is a fluid transition with many interim gradations in respect of which it is necessary to reexamine the extent to which the principles of one or both of the core areas apply.

6 / 57 Furthermore, there is consensus that economic loss must be compensated when such constitutes consequential loss deriving from the infringement of an absolutely protected right 118.

112Cf van Boom, Pure Economic Loss: A Comparative Perspective, in: van Boom / Koziol / Witting, Pure Economic Loss 22 f.

113See fundamentally on this Canaris, Ansprüche wegen » positiver Vertragsverletzung « und » Schutzwirkungen für Dritte « bei nichtigen Verträgen, JZ 1965, 475 ff.

114Cf regarding information provided by banks Koziol, Bankauskunft, Raterteilung und Aufklärung, in: Apathy / Iro / Koziol, Österreichisches Bankvertragsrecht I2 ( 2007 ) no 3 / 10.

115On this Canaris, Schutzgesetz – Verkehrspflichten – Schutzpflichten, Larenz-FS ( 1983 ) 91 ff; see also OGH 8 Ob 51 / 08w in JBl 2009, 174.

116In more detail Koziol, Das Emissionsgeschäft, in: Apathy / Iro / Koziol, Österreichisches Bankvertragsrecht VI2 ( 2007 ) no 1 / 91 ff with additional references.

117Cf Karner in KBB, ABGB2 §1295 no 19.

118Koziol, Haftpflichtrecht I3 no 8 / 35.