Экзамен зачет учебный год 2023 / Koziol_BasicQuestions_Germanic
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As far as the intentional infliction of pure economic loss is concerned, a duty to |
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compensate is far more widely recognised than in the case of careless damage ( cf |
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§§ 874 and 1300 ABGB ), yet by no means always: every participant in competition |
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has, eg, very naturally the intention of expanding his business and of taking away |
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some of the business of his competitors, ie literally of damaging them; however, |
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there is only liability if the means employed are unfair ( see § 1 UWG ). Elsewhere, |
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liability for deliberate infliction of pure economic loss usually requires that the |
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harm sustained was out of all proportion to the promotion of the damaging par- |
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ty’s interests 119; this is recognised to be the deciding factor when it comes to delib- |
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erating on whether someone acts contra bonos mores 120. |
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While contractual relationships are not counted among the absolutely pro- |
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tected rights, it is nonetheless recognised that the obligee enjoys a certain amount |
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of protection, specifically against the deliberate inducement of the obligor to |
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breach of contract 121 and according to widespread opinion also against deliberate |
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exploitation of any breach of contract 122. Unfair means or a gross disproportion of |
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interests are not required. Moreover, it is questionable whether the infringement |
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of third-party contracts actually constitute a violation of pure economic interests |
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since a protected right actually does exist to a certain degree. The answer to this |
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rather semantic question does not seem important; however, the contrary is true |
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of the finding that the protection of these economic interests goes farther than |
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that of other pure economic interests: their consolidation in a right would seem |
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to be the material factor. |
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Furthermore, compensation is awarded for pure economic interests when |
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damage is shifted: if the damage is shifted to a third party on the basis of an |
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arrangement on the shifting of damage between the direct victim and such third |
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party and if such sustains pure economic damage, then prevailing opinion today |
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considers that this must be compensated by the damaging party 123. A well-known |
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example of this is the employee who is injured and thus can no longer perform his |
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work. The employer must continue to pay for the work in the form of the employ- |
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ee’s salary and sustains pure economic loss, which however must be compensated |
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in the end – via different legal constructions. |
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§ 1327 ABGB and § 844 ( 2 ) BGB – as is the case in most other legal systems – |
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grant surviving dependants an independent claim to compensation for the loss of |
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119Koziol, Haftpflichtrecht II2 20 f.
120Thus, eg OGH 2 Ob 569 / 95 in SZ 70 / 137; See also the references in Bollenberger in KBB, ABGB3 § 879 no 5.
121Koziol, Die Beeinträchtigung fremder Forderungsrechte ( 1967 ) 159 ff; settled case law, see, eg OGH 4 Ob 562 / 82 in SZ 55 / 170.
122See OGH 3 Ob 87 / 93 in SZ 66 / 141; 6 Ob 174 / 00g in ÖBA 2001, 910 ( Karollus ) = JBl 2002, 182 ( Dullinger / Riedler ); Harrer in Schwimann, ABGB VI3 §1295 no 156 with additional references.
123More detail in Koziol, Haftpflichtrecht I3 no 13 / 3 ff.
Helmut Koziol
Basic Questions of Tort Law from a Germanic Perspective
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maintenance against the liable perpetrator when the party obliged to pay mainte- |
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nance to them is killed. This concerns pure economic loss suffered by such sur- |
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viving dependants as none of their absolutely protected rights has been violated. |
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This represents a clear contradiction to the case of when something which has |
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already been sold but not handed over is destroyed: general opinion considers |
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then that the buyer has no claim for compensation against the perpetrator on the |
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basis of the pure economic loss sustained. |
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4. The 10 commandments of liability for economic loss
6 / 62 On the basis of this short overview, it is possible to set out rules for establishing lia-
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bility for pure economic loss 124; these are largely followed in § 1298 Austrian Draft. |
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The arguments regarding the dangers of opening the floodgates to compen- |
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sation duties and the undisputed liability for pure economic loss in contractual |
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relationships as well as in cases of culpa in contrahendo, lead us to the first rule: |
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The lower the risk of an unlimited number of victims, the more justified is the liability |
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for pure economic loss. |
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Even under tort law, pure economic loss must be compensated by the perpe- |
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trator if the loss is consequential to the violation of absolutely protected rights. |
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Furthermore, pure economic loss must also be compensated in cases where dam- |
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age is merely shifted. Hence, the second rule can be expressed as follows: The less |
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the protection of economic interests leads to additional duties of care and thus further |
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restrictions on others’ freedom of movement, the more justified is the liability for pure |
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economic loss. |
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As contractual liability and liability for culpa in contrahendo prove, the factor |
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of proximity or special legal relationship is of great importance when establishing |
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liability for pure economic loss. Thus, the third rule is: the closer the relationship |
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between the parties involved, the more justified is the liability for pure economic loss. |
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It is a generally accepted rule that the greater the dangerousness or risk of |
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the situation, the more care must be exercised. Accordingly, liability for misin- |
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formation is assumed in particular in cases when an expert has given a statement |
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because people tend to trust in the opinion of an expert and to use it to guide their |
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own behavior. The same applies when the statement is made by someone who is |
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not an expert but claims to have special knowledge. Therefore, the fourth rule is: |
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the greater the probability that other people’s actions will be guided by the incorrect |
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statement, the more justified is the liability for pure economic loss. |
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A further relevant factor appears to be dependency on the information. This |
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is related to the element of dangerousness: if the recipient of information is depen |
124 In greater detail Koziol, Compensation for Pure Economic Loss from a Continental Lawyer’s Perspective, in: van Boom / Koziol / Witting, Pure Economic Loss 149 f.
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dent on such information when it comes to how he proceeds, then he is more |
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likely to let this information guide his actions and this makes the misguidance |
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provided by the misstatement especially dangerous. This notion appears to be |
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particularly decisive when it comes to cases involving issue prospectuses. Hence, |
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the fifth rule can be formulated as follows: the less the possible victim can protect |
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himself and thus the more he requires special protection, the more justified is the lia- |
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bility for pure economic loss. |
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It is also a widespread view internationally that far-reaching protection of |
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interests requires the interests be obvious. Pure economic interests are not typi- |
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cally obvious; however, obviousness may be substituted by actual knowledge. This |
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is why inducement to breach of contract leads to liability if the inducer knew of |
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the third-party contract or the third-party claim against other persons was obvi- |
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ous due to possession. Thus, the sixth rule can be inferred as follows: if the dam- |
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aging party knew of the economic interests or these were at least obvious, liability for |
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pure economic loss is more likely to be justified. |
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Clear definitions of rights facilitate comprehensive protection, as this makes |
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it more possible for third parties to respect them. Hence, the seventh rule pro- |
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vides that: the clearer the delimitation of the economic interests is, the more justified |
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the liability for pure economic loss. |
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§§ 874 and 1300 ABGB, but also comparative law 125 show that intention is a |
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decisive factor when establishing liability for pure economic loss. The idea behind |
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this is that an especially weighty ground for liability overrides the usual grounds |
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for reticence in this respect. Accordingly, the eighth rule is: if the perpetrator acted |
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with intent, the liability for pure economic loss is more likely to be justified. |
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In cases when the primary victim is killed, surviving dependants are usually |
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granted a compensation claim against the perpetrator. Two reasons would seem |
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to be decisive in this respect: firstly, the perpetrator has violated rights of the high- |
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est rank, namely the life of the person liable to pay maintenance. Secondly, the |
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surviving dependants’ financial interests thus infringed are particularly impor- |
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tant because they represent the dependants’ resources for existence. Thus, these |
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economic interests must be accorded a higher rank than many other pure eco- |
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nomic interests, for example, to gain a profit. Consequently, the ninth rule is: the |
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more important the financial interests typically are for the victims, the more justified is |
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the liability for pure economic loss. |
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Finally, another significant factor is the fact of the perpetrator pursuing his |
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own business interests. This is one of the main arguments for the far-reaching |
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contractual liability for pure economic loss. In the context of experts’ liability, the |
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fact of remuneration is also material in founding liability for misinformation, in |
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125Van Boom, Pure Economic Loss: A Comparative Perspective, in: van Boom / Koziol / Witting, Pure Economic Loss 15 ff.
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particular when it comes to information from banks. Therefore, the tenth rule is: the more it is the case that the damaging party acted in his own financial interests, the more the liability for pure economic damage is justified.
II. Fault
A. Concept, prerequisites and meaning
1.Concept
6 / 73 When we talk of the fault of the perpetrator, this means he is to blame for misconduct. In the following we will be looking at the more specific criteria behind such accusation in more detail. Regardless of the differing views in this respect – as already mentioned above – it is self-evident from a legal-ethical point of view that the perpetrator be liable for misconduct imputable to him ( see above no 6 / 1 ).
2.Prerequisites
6 / 74 Conduct is blameworthy in principle only if it was controlled by will 126; this is expressed by § 1294 ABGB when it refers to » voluntarily inflicted damage « ( willkürliche Beschädigung ). The movements of someone who is unconscious, uncontrollable reflexes or movements compelled by force are not actions in the legal sense.
6 / 75 Nonetheless, even voluntary conduct cannot trigger any blame when it is not in conflict with the legal system. Therefore, fault requires that the conduct be wrongful 127. The fact that an action fulfils the factual elements of a wrong is not enough in order to fulfill this prerequisite. This even applies under German law, even with respect to direct interferences in absolutely protected goods insofar as the wrongfulness of the result is taken as a basis ( no 6 / 4 ), since the perpetrator still may be able to rely on a ground for justification 128. Insofar as the theory of wrongfulness of the conduct is observed, carelessness is always the decisive factor.
6 / 76 Ultimately only such persons can be blamed for their conduct as are in possession of the necessary powers of discernment, ie who are in a position to recognise the wrongfulness of their conduct and to behave duly and properly. However, various different legal systems take account of subjective abilities to differing degrees; this
126Deutsch, Haftungsrecht2 no 84 ff; Larenz, Rechtswidrigkeit und Handlungsbegriff im Zivilrecht, Dölle-FS I ( 1963 ) 169; Larenz / Canaris, Schuldrecht II / 213 § 75 II 1.
127Koziol, Haftpflichtrecht I3 no 5 / 2 with additional references.
128Cf Larenz / Canaris, Schuldrecht II / 213 § 75 II 2 c.
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will be looked at more closely below ( see no 6 / 83 ff ). Nevertheless, it is accepted that the necessary ability to reason may depend on age and mental state.
§ 153 ABGB provides that the capacity for fault arises upon attaining the age 6 / 77 of responsibility, ie upon completion of the 14th year of life. However, this is not a
rigid age limit; in fact the necessary powers of discernment may also have developed earlier, making it possible to impute fault accordingly ( § 1310 ABGB ). Hence, attaining the age of responsibility in fact leads to a reversal of the assumption as to whether there is capacity for fault as follows: prior to age 14 incapacity for fault is presumed, thereafter capacity for fault is assumed. Those who have passed the age of responsibility may be deemed incapable of fault due to mental illness; however, this must be examined on a case-by-case basis in order to establish whether in the specific case the person may have had the necessary powers of discernment after all.
In Germany, § 828 ( 1 ) BGB precludes the responsibility of persons under seven years of age completely. Between the 7th and 10th completed year of life, responsibility for damage caused by accidents with cars, railways or cable cars is bizarrely excluded. Moreover, when the damaging party is a person under 18 years of age, liability may be precluded due to lack of the necessary powers of discernment. The exclusion of imputability due to pathological disturbances of mental processes is provided for in § 827 sentence 1 BGB.
In both jurisdictions, the exclusion of liability due to lack of understanding on the basis of age or mental disturbances is mitigated by equitable liability ( § 1310 ABGB, § 829 BGB; on this see below no 6 / 86 ).
3.Reference point for fault
Prevailing opinion is that fault must only relate to the » primary damage «, not all 6 / 78 of the consequential damage 129. Thus, such is imputed even if the damaging party
could not foresee or avoid it; in other words it suffices that it results from the damage for which he is at fault. However, liability is restricted by objective criteria, in particular adequacy and the protective purpose of the rule on which liability is based.
In the case of protective laws, which forbid even abstract, dangerous behaviour, even lower degrees of fault will be regarded as sufficient 130: the fault need only relate to the violation of the conduct rule; it is irrelevant whether the damage was foreseeable for the specific perpetrator.
129See Karollus, Schutzgesetzverletzung 278 ff.
130Von Bar, Verkehrspflichten. Richterliche Gefahrsteuerungsgebote im deutschen Deliktsrecht ( 1980 ) 160 ff, 169 ff; Karollus, Schutzgesetzverletzung 269 ff; Schmiedel, Deliktsobligationen nach deutschem Kartellrecht I ( 1974 ) 73 ff; Spickhoff, Gesetzesverstoß und Haftung 221 ff, in each case with additional references; OGH 4 Ob 216 / 99i in EvBl 2000 / 41.
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4.Meaning of fault
6 / 79 It still holds true today that fault may be regarded as the most important liability criterion 131. Most codes of legislation, including also the ABGB and the BGB, only provide for comprehensive rules on fault-based liability; provisions on other types of liability are scattered in special laws. Nevertheless, it would be wrong today to view fault-based liability as standard liability and all other types of liability, particularly strict liability, merely as exceptions to fault-based liability. Strict liability has gained considerably in significance over the last decades and it has been recognised as a form of liability equal in status to fault-based liability, which is why – at the very least – we speak in this context of the two-lane nature of liability ( see above no 1 / 21 ) 132.
6 / 80 The degree of fault and thus the gravity of the ground for liability are, furthermore, also of material importance when it comes to the extent of the liability. This can be said not only of the applicable Austrian law 133 that in the case of slight fault imposes on the damaging party at most liability for actual damage ( §§ 1323, 1324 ABGB ). The degree of fault can also be material when it comes to imputing consequential damage because the adequacy concept is extended in the case of serious fault and indeed does not apply at all when it comes to intention ( see below no 7 / 11 ff ). Similar applies to the delimitation of the protective purpose 134.
B.Subjective or objective assessment of fault ? 135
1.The principle of subjective assessment
6 / 81 According to § 1294 ABGB there is negligence if the perpetrator acted without exercising due care and diligence.
The finding that the perpetrator has acted negligently encompasses in its original meaning the accusation that there has been blameworthy will 136. Such an accusation can only be levelled against the specific perpetrator in the event
131This predominantly applies also to the actual treatment of this topic by the courts, cf Kolb, Auf der Suche nach dem Verschuldensgrundsatz. Untersuchungen zur Faktizität der Culpa-Doktrin im deutschen außervertraglichen Haftungsrecht ( 2008 ) 22 ff.
132Esser, Die Zweispurigkeit unseres Haftpflichtrechts, JZ 1953, 129. As regards a multi-lane nature Wilburg, Elemente 1 ff.
133The Austrian Draft does not contain any such rigid classification any more.
134On this see Wilburg, Elemente 242 f; Koziol, Haftpflichtrecht I3 no 8 / 15 ff and 21 with additional references.
135On this already in more detail Koziol, Objektivierung des Fahrlässigkeitsmaßstabes im Schaden ersatzrecht ? AcP 196 ( 1996 ) 593 ff; idem, Liability Based on Fault: Subjective or Objective Yardstick ? MJ 1998, 111 ff.
136Wilburg, Elemente 43 ff. On the changes of the concept of fault, very impressive Meder, Schuld, Zufall, Risiko ( 1993 ); cf also van Dam, Tort Law 219; Jaun, Sorgfaltspflichtverletzung 7 ff; Schermaier in HKK zum BGB II Vor § 276 no 5 ff, §§ 276 – 278 no 7 ff.
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that had he exercised his will duly and properly, he would have recognised that |
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he was acting dangerously and wrongfully and also provided it would have been |
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possible for him to act differently.137 Therefore, fault is contingent upon a subjec- |
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tive assessment of blameworthy will. Hence, in principle a subjective standard of |
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assessment must also be applied: it is necessary to examine whether the specific |
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perpetrator on the basis of his personal abilities would have been able to recog- |
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nise the occurrence of the damage and the wrongfulness and been able to act |
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accordingly 138. Only if his individual abilities would have been adequate to avoid |
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the damage, can a personal accusation of blameworthy will be levelled; and only |
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then can fault in the strict sense be affirmed 139. |
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With respect to the degree of care and diligence, however, the law requires that |
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the assessment standard be objective 140: § 1294 ABGB stipulates that due diligence |
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and care must be exercised. Likewise § 1297 ABGB provides that anyone who does |
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not exercise the degree of diligence and care that can be exercised by someone |
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with ordinary abilities is guilty of error. § 1300 Austrian Draft follows the tradi- |
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tional Austrian line. |
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A widely held opinion 141, prevailing nowadays in Germany 142 and predomi- |
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nantly advocated in Switzerland 143 takes the view that in relation to the subjective |
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137It is not possible to enter into the fundamental question of free will in more detail here. See on this in more recent times Herzberg, Willensfreiheit und Schuldvorwurf ( 2010 ); his view ( 83 ff, 125 ) can be endorsed in that it is not freedom of will that is decisive insofar as everyone is responsible for his own character and everyone must allow decisions, actions and omissions to be imputed to him when such are attributable to this character.
138Cf § 6 StGB.
139Thus, also the prevailing Austrian view: F. Bydlinski in Klang, ABGB IV / 22 173; Ehrenzweig, Die Schuldhaftung im Schadenersatzrecht ( 1936 ) 226; Reischauer, Der Entlastungsbeweis des Schuldners ( 1975 ) 201 f; Wilburg, Elemente 17, 53; OGH 5 Ob 536 / 76 in SZ 49 / 47. Also von Zeiller, Commentar III / 2, 711 ff, and Dniestrzanski, Die natürlichen Rechtsgrundsätze, FS zur Jahrhundertfeier des ABGB II ( 1911 ) 27, mention the objective standard for the degree of diligence and care. Taking another view Kramer, Das Prinzip der objektiven Zurechnung im Deliktsund Vertrags recht, AcP 171 ( 1971 ) 422, who wishes to follow the prevailing German opinion; further Lewisch, Die ökonomische Analyse des Rechts und das ABGB, FS 200 Jahre ABGB ( 2011 ) 1232 ff.
140Mayrhofer, Schuldrecht I3 295 f; OGH 8 Ob 227 / 76 in ZVR 1978 / 167. Cf also von Zeiller, Commentar III / 2, 711. On the corresponding objective standard in criminal law cf Burgstaller, Das Fahrlässigkeitsdelikt im Strafrecht ( 1974 ) 189 f.
141See the comparative law explanations in van Dam, Tort Law 219 ff; Koziol, MJ 1998, 112 f.
142In detail Deutsch, Fahrlässigkeit2 in particular 137 ff, 299 ff. See furthermore von Bar, Verkehrs pflichten. Richterliche Gefahrsteuerungsgebote im deutschen Deliktsrecht ( 1980 ) 137 f, 177 ff. Jansen, Struktur des Haftungsrechts 445 ff; Larenz, Über Fahrlässigkeitsmaßstäbe im Zivilrecht, Wilburg-FS ( 1965 ) 119; Wieacker, Rechtswidrigkeit und Fahrlässigkeit im Bürgerlichen Recht, JZ 1957, 535; Wiethölter, Der Rechtfertigungsgrund des verkehrsrichtigen Verhaltens ( 1960 ) 45 ff.
143Guhl / Koller / Druey, Das Schweizerische Obligationenrecht9 ( 2000 ) 181; Jaun, Sorgfaltspflicht verletzung 135 ff, in particular 258 ff; Keller, Haftpflicht im Privatrecht I6 ( 2002 ) 119 f; likewise for feasability reasons Oftinger / Stark, Haftpflichtrecht I5 205 ff. Against this Fellmann, Der Verschuldensbegriff im Deliktsrecht, ZSR 106 ( 1987 ) 339; Also critical R.H. Weber, Sorgfaltswidrigkeit – quo vadis ? ZSR 107 ( 1988 ) 39.
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abilities of a person too, the normative carelessness standard must always be objective. According to this view, it is not the individual abilities of the person which are decisive but rather the average abilities and knowledge typical for such group of persons. However, this departs from the basis for personal culpability in respect of blameworthy will 144 and attaches liability to an objectively established lack of understanding or lack of abilities:
Someone equipped by nature with below average abilities is thus subject to a type of strict liability – albeit contingent upon objectively deficient conduct 145, such liability being based on the increased dangerousness emanating from a person not adequately equipped with ability 146.
Ultimately this leads – at least insofar as the participation in general interactions necessary for an existence compatible with human dignity is concerned – to liability for existing, which will affect such a person particularly seriously given that he is already disadvantaged. This standpoint has rightly been subjected to hefty criticism, also in respect of German law 147.
6 / 84 The widespread objective assessment of carelessness also contrasts oddly with the treatment of intention: the knowledge that the intended act is forbidden and that it may cause damage, which is a condition for intention, naturally depends on the intender’s subjective abilities; without such knowledge and without the ability to discern such, the forbidden nature and threat of damage occurring remain invisible to the perpetrator. Nonetheless, none of the advocates of an objective assessment of carelessness would assume there is intention if the perpetrator merely failed to recognise wrongfulness and damage due to his below average abilities.
6 / 85 Some writers attempt to justify departing from subjective assessment by evoking the notion of trust ( Vertrauensgedanken ) 148. However, this overlooks the fact
144Thus, also Larenz, Lehrbuch des Schuldrechts I14 ( 1987 ) § 20 III; Köndgen, Haftpflichtfunktionen und Immaterialschaden am Beispiel von Schmerzensgeld und Gefährdungshaftung ( 1976 ) 43; Oftinger / Stark, Haftpflichtrecht I5 205 ff.
145Thus, eg, Reimer Schmidt in Soergel, BGB II / 1b10 § 276 no 17. Jansen, Struktur des Haftungsrechts 445 ff, writes of a guarantee liability as everyone must be accountable for the care required in the interaction in daily life.
146Thus, von Bar, Verkehrspflichten 138.
147Brodmann, Über die Haftung für Fahrlässigkeit, AcP 99 ( 1906 ) 346 ff; Leonhard, Fahrlässigkeit und Unfähigkeit, Enneccerus-FS ( 1913 ) 19 ff; Siber in Planck, BGB II / 14 221; von Tuhr, Der Allgemeine Teil des Deutschen Bürgerlichen Rechts II / 2 ( 1918 ) 489; Dölle, Empfiehlt es sich, im Zusammenhang mit der kommenden Strafrechtsreform die Vorschriften des bürgerlichen Rechts über Schuldfähigkeit, Schuld und Ausschluß der Rechtswidrigkeit zu ändern ? Gutachten zum 34. Deutschen Juristentag I ( 1926 ) 113 ff; Enneccerus / Nipperdey, Allgemeiner Teil des Bürgerlichen Rechts15 II ( 1960 ) 1322; Nipperdey, Rechtswidrigkeit, Sozialadäquanz, Fahrlässigkeit, Schuld im Zivilrecht, NJW 1957, 1780 ff; Wilhelmi, Risikoschutz 317 ff.
148Cf von Bar, Verkehrspflichten 137 f; Esser / Schmidt, Schuldrecht I / 28, 26 II 1 b; Larenz, Schuld recht I14 § 20 III; thus also Kramer, AcP 171 ( 1971 ) 428.
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that the trust aspect cannot play any role 149 in the law of tort 150 in this respect, as nobody exposes himself to damage on the basis of trust in the typical abilities of the damaging party and thus in such party’s duty to compensate. The fact that at least in the area of tort, the concept of trust plays no role as regards application of an objective standard of fault is also shown in that in our legal system the mentally ill are not in principle liable; this applies even if third parties are believed to have relied on their ability to exercise care. Neither can the theory that proceeds on the basis of an objective standard explain convincingly why precisely in the case of incapacity to commit torts, the principle of trust protection should be departed from. This means that a very obvious conflict is simply accepted without any attempt at explanation.
However, the consequences of subjective assessment are mitigated in the Aus- 6 / 86 trian Draft by § 1301: if persons under 14 years of age, who are assumed not to have
the necessary powers of discernment, or persons who cannot use their faculty of reason, act in a manner that is objectively careless, it is still possible to hold them fully or partially liable; this decision must be based in particular on any advantage gained by them in inflicting the damage as well as their pecuniary circumstances and those of the victim. This rule is based mainly on principles already common in today’s law ( see § 1310 ABGB; § 829 BGB ). However, these have a very broad field of application and consequently in the Austrian Draft § 1301 sentence 2 provides that similar applies even if someone has acted in an objectively wrongful manner but is generally capable of fault, yet in view of the lack of the necessary abilities and knowledge, in the specific case cannot be accused of fault 151.
2.Objective standard for breach of contract
In contrast to tortious liability, the application of an objective standard of respon- 6 / 87 sibility may well be justified in the context of contractual liability 152; this is also broadly accepted by those who in principle defend taking subjective abilities as
149The rejection of this argument by Wilhelmi, Risikoschutz 69, seems to be based on a misunderstanding caused by my overly wide formulation: I do not reject the concept of protection based on reliance for the law of damages in general, instead I only rejected the importance of the reliance in respect of applying an objective standard of fault. In this respect, Wilhelmi ( 337 ) would actually seem to take the same view.
150See Fellmann, ZSR 106, 358; U. Huber, Zivilrechtliche Fahrlässigkeit, E.R. Huber-FS ( 1973 ) 274; Reischauer, Entlastungsbeweis 202.
151Thus, also Wilhelmi, Risikoschutz 343 f.
152Von Caemmerer, Die absoluten Rechte in § 823 Abs. 1 BGB, Karlsruher Forum 1961, 25 ff = Gesam melte Schriften I ( 1968 ) 572 ff; idem, Das Verschuldensprinzip in rechtsvergleichender Sicht, RabelsZ 42, 16; U. Huber, E.R. Huber-FS 260 f, 281 ff; Fellmann, ZSR 106, 339; critical also R.H. Weber, ZSR 107 ( 1988 ) 358 f; idem, Selbstverantwortung und Verantwortlichkeit im Schadenersatzrecht, SJZ 91 ( 1995 ) 46 f.
Helmut Koziol
Basic Questions of Tort Law from a Germanic Perspective
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Helmut Koziol |
Basic Questions of Tort Law from a Germanic Perspective |
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a basis 153: special contractual duties are taken on voluntarily, each party to a contract exposes the other to the possibility of such damage in the first place by concluding the contract and in this respect it typically really plays a role that there is trust that the contractual relationship will be handled duly and properly. In this respect, the assumption that each party to the contract may rely on their partner having the usual abilities would seem justified for several reasons, insofar as the contract does not provide otherwise 154: on the one hand, the value of every obligee’s claim depends on the secondary claims that are triggered by the obligor’s failures to perform the contract duly. If the obligor was not responsible for the consequences of his omission or the inadequacy of his performance simply because he does not possess the respective abilities, then the obligor’s liabilities in this respect would ultimately depend on his abilities, which are generally not transparent to the partner.
6 / 88 On the other hand, when it comes to obligations based on legal transactions a role is also played – admittedly in a somewhat attenuated manner – by the concept of guarantee 155: if the obligor promises to render a certain performance, this may be understood by his partner in the transaction as a guarantee – unless otherwise expressly agreed – that the obligor is capable of exercising the usual care and thus has the usual capacity for performance. This idea has been incorporated into positive law by Art 79 of the UN CISG 156.
However, it seems contradictory that the » guarantee « for usual performance capacity not be applicable in particular in respect of serious deviations from the promised standard, namely in respect of the mentally ill and young people under the age of responsibility. In this context, it is outweighed by the notion of special needs for protection on the part of those who are seriously disadvantaged mentally. Moreover, in such cases there is usually a legal representative whose responsibility it is to make sure that the mentally unable are not involved in the performance of the contract. If the legal representative fails to do this, the mentally ill or under-age person is accountable for the violation of this duty of care under § 1313 a ABGB, § 278 BGB. The contractual party who suffered the damage
153See Eneccerus / Nipperdey, Allgemeiner Teil 1322 with additional references. Cf further also Brodmann, AcP 99 ( 1906 ) 373.
154U. Huber, E.R. Huber-FS 286.
155See von Caemmerer, Karlsruher Forum 1961, 26; Larenz, Schuldrecht I14 § 20 I; Koziol, Delikt, Verletzung von Schuldverhältnissen und Zwischenbereich, JBl 1994, 214; Grundmann in MünchKomm, BGB II5 § 276 no 26 ff; U. Huber, Leistungsstörungen II ( 1999 ) 524 ff; Schermaier in HKK zum BGB II § 275 no 56, §§ 276 – 278 no 2. Dölle / Stoll, Kommentar zum Einheitlichen Kaufrecht ( 1976 ) Art 74 no 39, emphasises that the objective standard of negligence leads to convergence with the obligor’s guarantee of performance, familiar above all in English law.
156On this Karollus, UN-Kaufrecht ( 1991 ) 206; Rummel, Schadenersatz, höhere Gewalt und Fortfall der Geschäftsgrundlage, in: Hoyer / Posch ( eds ), Das Einheitliche Wiener Kaufrecht ( 1992 ) 178; Schlechtriem / Stoll, Kommentar zum Einheitlichen UN-Kaufrecht2 ( 1995 ) Art 79 no 6.
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Chapter 6 |
The elements of liability |