Экзамен зачет учебный год 2023 / Koziol_BasicQuestions_Germanic

ger applies, however, if this derives from a defect in the state of the vehicle or failure in its operation. The already stringent, non-fault-based liability for railways and motor vehicles due to their dangerousness is thus further tightened if the vehicle in question is defective by excluding the exemption for unavoidable events.

256This too can be replaced by the misconduct of auxiliaries, but § 1319 a ABGB not only imputes the » Besorgungsgehilfen « in the sense of § 1315 ABGB but also all other people in the keeper’s sphere.

257When the ground is used on the basis of a commercial contract, § 1319 a ABGB does not apply, instead the unlimited contractual liability applies; see Reischauer in Rummel, ABGB II / 13 § 1319 a no 26.

258Cf Bollenberger in KBB, ABGB3 § 945 no 1; Koziol in KBB, ABGB3 § 1419 no 5; Koziol, Haftpflicht­ recht I3 no 4 / 41, 17 / 16.

259This is also the basis of § 1326 2 Austrian Draft.

260Cf Koziol, Haftpflichtrecht II2 358; expressly in favour of liability for the people in § 1319 a ABGB Reischauer in Rummel, ABGB II / 13 § 1319 a no 16.

261See Karner in KBB, ABGB3 § 1299 no 1.

This is based on the idea that the general dangerousness of vehicles is aggravated by the danger deriving from the defect and that a tightening of the liability is thus appropriate 262.

6 / 135 Product liability takes as its starting point the fact that the damage is brought about by a defect of the product ( § 1 ( 1 ) PHG ). As the description of defectiveness shows, the crux is that the defectiveness leads to a dangerousness which is not generally a common feature of suchlike products; specifically, a product is defective under § 5 ( 1 ) PHG only if the product does not offer the safety that one is entitled to expect taking all the circumstances into account. The dangerousness emanating from the defect cannot, however, in general be classified as very high since many products are not likely even in a defective state to bring about extensive damage or to substantially increase the frequency of damage occurring. Typical examples are bent paper clips or spoilt food, which can only bring about harmless scratches or temporary nausea. A comparison with other rules makes it clear that, accordingly, the dangerousness of the defect on its own cannot be the justification for such strict liability as is provided for by the PHG. Therefore, in this context too other reasons must be decisive in respect of the increased liability, for example, the notion of solidarity ( see below no 6 / 181 ); nonetheless, defectiveness is certainly the lynchpin.

It must also be considered that when it comes to product liability, different ideas are behind the affiliation to someone’s sphere than may otherwise be the case. In the case of buildings, roads and vehicles, the defective things are imputed to their keeper’s sphere; the keeper is the person whose interests are served by the thing and who has the power to exercise influence on them 263. Neither criterion applies to the producer once he places the thing at issue on the market. He could only exercise influence in advance on the production process and thus in this sense towards the product being as free as possible from defects.

C. Technical equipment replacing people

6 / 136 In more recent times there has been – especially in the field of banking 264 – debate as to whether entrepreneurs are also subject to non-fault-based liability for disturbances of hardware and software when they use computers or robots. Under consideration comes an analogous application of §§ 1313 a, 1315 ABGB, §§ 278, 831

262Thus, B.C. Steininger, Verschuldenshaftung 130.

263See Koziol, Haftpflichtrecht I3 no 6 / 11.

264On this H. Berger, Schadensverteilung bei Bankbetriebsstörungen ( 1980 ); Köhler, Die Problematik automatisierter Rechtsvorgänge, insbesondere von Willenserklärungen, AcP 182 ( 1982 ) 126; U.H. Schneider, Das Recht des elektronischen Zahlungsverkehrs ( 1982 ); Koziol, Die Haftung der Banken bei Versagen technischer Hilfsmittel, ÖBA 1987, 3 with additional references.

BGB 265. In favour of this analogy it may be submitted that the principle of liability for auxiliaries 266 is also applicable when technical equipment is used: by using such, the principal expands his activity field – just as by using auxiliaries – in his own interest and would thus be able to improve his position if the functional defectiveness of the machines in contrast to his own fault or that of auxiliaries did not trigger any liability. On the other hand, it must be remembered that our legal system basically attaches the liability of principals to human behaviour and to the serious accusation of unlawful conduct. Strict liability, independent of fault or even objective carelessness is only stipulated in the case of the use of an especially dangerous things, eg motor vehicles; IT systems certainly do not belong to this category.

In favour of stricter liability it can be argued that the Austrian legislator has introduced non-fault-based liability in more recent times for computer-supported data processing in respect of administering both the land register and the commercial register ( § 27 GUG, § 37 FBG ) as well as for dunning processes ( § 89 e GOG ). These provisions show that out legal system does recognise liability for technical equipment if such replaces human auxiliaries.

The justification for this liability runs into difficulty, however, in that the 6 / 137 grounds for liability for technical equipment seem to be less weighty than those

that are required for liability for human auxiliaries: specifically, the serious charge of wrongful behaviour on the part of the auxiliaries is lacking. F. Bydlinski 267 highlights, nonetheless, that this issue involves cases where in the process of technical development certain things take over intellectual functions previously discharged by humans and that this on its own, ie randomly from a normative point of view, would otherwise also change the position as regards liability. This issue might be referred to as » function change «, in the context of which new interpretations or changes in law are necessary, he argues, precisely in order to maintain the existing legal evaluations and results in the new factual circumstances, in this case leading to an analogous application of the rules on liability for auxiliaries to things with intellectual functions.

In favour of this analogy it can be said that even in the field of liability for auxiliaries the crux is not whether the auxiliary can be accused of having engaged in conduct that is careless and culpable but instead that this conduct would have been culpable had it been engaged in by the principal himself. Insofar a hypothetical accusation, namely when projected onto the principal, can also be levelled in the event that computers and corresponding technical equipment is used:

265Thus, eg, Canaris, Bankvertragsrecht I3 ( 1988 ) no 367; G. Graf, Rechtsfragen des Telebanking ( 1997 ) 67; Janisch, Online Banking ( 2001 ) 241; Möschel, Dogmatische Strukturen des bargeldlosen Zahlungsverkehrs, AcP 186 ( 1986 ) 197 ff; Spiro, Erfüllungsgehilfen 209 ff; against this U.H. Schneider, Zahlungsverkehr 82 f.

266See Koziol, Haftpflichtrecht II2 336; Spiro, Erfüllungsgehilfen 57 ff.

267System und Prinzipien 215 f.

there must be a defect which would have led to an accusation against the principal if such had occurred to him. Thus, it is decisive in such cases that a defect occurs within the principal’s sphere of responsibility, which would be construed as wrongful conduct had the principal himself performed the process at issue.

This idea has also largely been adopted by the Austrian Draft and the rule has been laid out analogously to liability for auxiliaries. § 1306 ( 4 ) of the Austrian Draft provides that the principal is also liable for failure of technical equipment that he uses in the same way as Besorgungsgehilfen; however – in line with the rule on liability for auxiliaries – only when the victim proves 268 that the equipment was unsuitable, the principal did not exercise reasonable care in selecting it or did not adequately monitor it.

6 / 138 One question remains with respect to the Austrian positive law provisions on liability for computers. The above-mentioned provisions on non-fault-based liability for computer-supported data processing actually exclude liability when the damage is caused by an unavoidable event, which derives neither from a defect in the state nor failure of the means of the equipment. Hence, it includes a ground for exemption from liability that is otherwise only usual in the context of strict liability. As, however, this particular issue does not concern liability for a generally posed, specific danger and, moreover, liability for auxiliaries does not know any corresponding ground for exemption, it is advisable to abstain from adopting this ground for exculpation.

IV.  Dangerousness

A. Introduction

6 / 139 The principles behind » liability based on dangerousness « ( Gefährdungshaftung ) 269 are, on the one hand, that it is more appropriate to impute the damage to someone whose interests are served by the special, permitted source of danger at issue. This is in line with the widespread conviction that those who derive the

268If the principal is an entrepreneur the burden of proof is reversed.

269Müller-Erzbach, Gefährdungshaftung und Gefahrtragung, AcP 106 ( 1910 ) 365 ff, 413 ff; Esser, Grundlagen und Entwicklung der Gefährdungshaftung ( 1941 ) 97 ff; von Caemmerer, Reform der Gefährdungshaftung ( 1971 ) 15 f; Hübner, Noch einmal: Gefährdungshaftung und Verantwortung, Müller-Freienfels-FS ( 1986 ) 335 ff; Larenz / Canaris, Schuldrecht II / 213 § 84 I 2 a; Gimpel-Hin- teregger, Grundfragen der Umwelthaftung ( 1994 ) 31 ff; Koziol, Österreichisches Haftpflichtrecht I3 no 6 / 11; Oertel, Objektive Haftung in Europa ( 2010 ) 284 ff; further the Comparative Conclusions of B.A. Koch / Koziol, in: B.A. Koch / Koziol, Unification: Strict Liability 412 with additional references. Takign a different view Blaschczok, Gefährdungshaftung und Risikozuweisung ( 1993 ) 53 ff, 63 ff, 356 ff.

of the causation of damage – which cannot be avoided by application of care – and secondly the extent of the harm threatened 273. Rightly, it is further emphasised that the controllability of the risk also plays a decisive role: the more controllable a danger is, the less dangerous it is 274.

The rules on dangerousness liability have different levels of strictness, depending on the degree of dangerousness involved.275 The strictness of the lia-

270Jaun, Sorgfaltspflichtverletzung 261 ff, considers that strict liability was developed out of the subjective concept of fault and with reference to the insufficiency of such also that liability based on dangerousness loses its justification as the second lane of liability law. This view is not very convincing as liability based on dangerousness is based on completely different principles and has its own justification alongside both subjective and objective misconduct.

271F. Bydlinski, System und Prinzipien 215.

272On this Koziol, Erlaubte Risiken und Gefährdungshaftung, in: Nicklisch ( ed ), Prävention im Umweltrecht ( 1988 ) 148 ff.

273On all of this F. Bydlinski, System und Prinzipien 201 ff; Canaris, Die Gefährdungshaftung im Lichte der neueren Rechtsentwicklung, JBl 1995, 2; Koziol, Haftpflichtrecht I3 no 6 / 1 with additional references; B.C. Steininger, Verschuldenshaftung 25 ff.

274B.C. Steininger, Verschuldenshaftung 27 f.

275See on this Koziol, Bewegliches System und Gefährdungshaftung, in: F. Bydlinski / Krejci / Schilcher / V. Steininger ( eds ), Das bewegliche System im geltenden und künftigen Recht 51; Jansen, Struktur des Haftungsrechts 384; Schilcher, Schadenstragung und Schadensverteilung als Haftungsgründe, Posch-FS ( 2011 ) 683.

bility is expressed above all in the increasing denial of grounds for exculpation. This can be expressed as follows » the higher the risk, the fewer defences are available «. This also highlights the principle that the victim should be allowed to shift the damage sustained to someone who has a closer relationship with the source of danger. The greater the threat imputable to the defendant is, the truer it is that this goal can only be reached by allowing the defendant just a few means of exemption. The best example of this is the introduction of nuclear power liability without the possibility of any defence in some countries 276.

6 / 142 It is largely a feature of the special rules in Austria and Germany that liability is limited to a certain maximum sum in contrast to fault-based-liability. The problems associated with this type of restriction have often been pointed out 277 and happily the Austrian legislature has taken account of this criticism in recent times.

6 / 143 Another clarification: the concept of » Gefährdungshaftung « ( liability based on dangerousness ) is often used in a very broad sense to describe non-fault-based liability, ie strict liability in general. However, this is not entirely accurate since liability based on dangerousness in reality only makes up a – albeit very significant – part of non-fault-based liability. In English law – and also in the PETL by the EGTL 278 – the field of liability not based on fault is always referred to as » strict liability «, which is a more fitting label. Admittedly, most cases of non-fault-based liability take as their starting point the special dangerousness of the things or activities at issue, nonetheless this is certainly not always the case. Thus, for example, the harmonised law on product liability within the European Union is a form of non-fault-based liability, however it does not represent liability based on dangerousness in the stricter sense 279, as it is not based on any generally posed, high degree of dangerousness but on individual cases of defectiveness of products. For instance, an ineffective pesticide 280 cannot be seen in this respect as posing a general danger because it does not adequately protect plants against a particular pest in contrast to what is claimed in the product description.

In the following, in any case, only the criterion of general dangerousness and its significance for the liability for damage will be discussed.

276See B.A. Koch / Koziol, Comparative Conclusions, in: B.A. Koch / Koziol, Unification: Strict Liability 424.

277Cf also Koziol, Haftpflichtrecht I3 no 6 / 24 ff with additional references.

278Chapter 5 is headed » Strict liability «.

279In this sense, eg, Fitz / Purtscheller / Reindl, Produkthaftung ( 1988 ) § 1 no 7; Grau, Produktfehler ( 2002 ) 50 ff; Koziol, Grundfragen der Produktehaftung ( 1980 ) 53 ff. In favour of its classification as liability based on dangerousness, however, Canaris, JBl 1995, 6; Welser, Produkthaftungsgesetz1 ( 1988 ) 30 ( only referenced in the second edition of Welser / Rabl, Produkthaftungsgesetz2 [ 2004 ] 11 ).

280On the applicability of product liability law in the case of non-functioning products see Grau, Produktfehler 88 ff with additional references; OGH 6 Ob 162 / 05z in SZ 2007 / 98.

B. An informative look at Europe 281

281On this Brüggemeier, Haftungsrecht 103 ff; van Dam, Tort Law 255 ff; B.A. Koch / Koziol, Unification: Strict Liability; Koziol, Die Vereinheitlichung der Gefährdungshaftung in Europa, Michalek-FS ( 2005 ) 217 ff; Oertel, Objektive Haftung 49 ff; Werro, Liability for Harm Caused by Things, in: Hartkamp / Hesselink / Hondius / Mak / du Perron ( eds ), European Civil Code4 921 ff.

282See on this in detail the country reports in B.A. Koch / Koziol, Unification: Strict Liability, and the editors’ Comparative Conclusions 395 ff.

283Cf on this, eg, for Germany G. Wagner in MünchKomm, BGB V5 Vor § 823 no 25, who writes of a hidden liability based on dangerousness.

284In this sense very clearly Gilead, Israel, in: B.A. Koch / Koziol, Unification: Strict Liability 184; likewise Martín-Casals / Ribot / Solé, Spain 282; du Perron / van Boom, Netherlands 227 both in B.A. Koch / Koziol, Unification: Strict Liability; Galand-Carval, France, in: Spier, Unification: Liability for Others 85 ff; likewise van Dam, Tort Law 260 f.

285This is also seen by Jansen, Struktur des Haftungsrechts 545 ff; idem, Das Problem der Rechtswidrigkeit bei § 823 Abs. 1 BGB, AcP 202 ( 2002 ) 517 ff, however, he does not wish to draw the conclusion that liability based on dangerousness should be generally accepted but instead wishes to resort generally to a result-based understanding of wrongfulness; in this way, however, he obscures the difference between liability based on misconduct and on dangerousness.

vidual laws.286 The negative impacts of this approach are overcome at least in part in Austria by the courts adopting cautious analogies and thus closing the most obvious gaps and contradictions in value judgements 287. On the other hand, the disadvantages of resorting to individual rules are particularly obvious when, as in Germany 288 and Switzerland 289, the analogical method of application for special laws is rejected and thus it is not possible to close obvious gaps in legislation in this manner. The attempts to circumvent the resulting inevitable contradictions in evaluation by over-stretching duties of care 290 or even by taking the wrongfulness of the result as a sole basis 291 are certainly much more dubious from a theoretical perspective than using analogies as is otherwise generally accepted to fill the gaps.

6 / 147 French law takes a different route, both inferring a general non-fault-based liability of the keeper ( gardien ) of things from Art 1384 Code civil and very liberally applying special laws, eg loi Badinter. Polish law follows this example ( Art 435 Civil Code ) 292.

C. Dangerousness as a ground for liability

6 / 148 The recognition of non-fault-based liability may be based on several reasons and often more than one of these play a role in any particular case. However, dangerousness is certainly the most significant liability criterion in this field, which – as already mentioned – is referred to accordingly in the German language legal systems as » liability for dangerousness «.

6 / 149 The dangerousness does not always emanate from a thing, sometimes instead it derives from human conduct. Moreover, human conduct is often also decisive

286See Oertel, Objektive Haftung 49 ff.

287From more recent times, eg, OGH 1 Ob 306 / 99b in JBl 2000, 790 = SZ 73 / 118; 10 Ob 7 / 05k in JBl 2005, 588 = SZ 2005 / 28. Cf on this Koziol, Umfassende Gefährdungshaftung durch Analogie ? Wil- burg-FS ( 1975 ) 173.

288Cf G. Wagner in MünchKomm, BGB V5 Vor § 823 no 24 with additional references.

289Honsell, Schweizerisches Haftpflichtrecht4 ( 2005 ) § 1 no 22.

290On approaches to over-stretching in German case law see Kolb, Auf der Suche nach dem Verschuldensgrundsatz. Untersuchungen zur Faktizität der Culpa-Doktrin im deutschen außervertraglichen Haftungsrecht ( 2008 ) 57 ff.

291Thus, eg, Jansen, AcP 202 ( 2002 ) 544 ff; idem, Struktur des Haftungsrechts 545 ff, who, however, does not answer the decisive question of which additional criteria may lead to liability. In reality, regard would have to be had to all valuations that are decisive in respect of liability based on dangerousness, yet all of this would ensue under the cover of liability for wrongfulness under § 823 ( 1 ) BGB, which would be highly dubious from a theoretical perspective and does not seem very constructive.

292Details and references can be found in the country reports in B.A. Koch / Koziol, Unification: Strict Liability; a summary and references to the individual countries can be found in this volume in the Comparative Conclusions 395 ff.

even when the effect of a thing is material. F. Stone 293 has rightly emphasised that things become dangerous due to some act or omission on the part of people, namely due to them being simply possessed or due to conduct. He concludes that it would not make sense to make liability solely contingent on the dangerousness of the things or solely on that of the conduct.

It has already been mentioned above that three criteria are relevant in assess- 6 / 150 ing dangerousness: the probability that damage will occur, the extent of the possi-

ble damage and the controllability of the risk. These three criteria may have different influences on the outcome; however, they must always be examined together: if there is a high risk of injury then liability based on dangerousness may even be justified if the possible damage is relatively minor; in this connection the damage caused by motor vehicles comes to mind. On the other hand, liability based on dangerousness is also appropriate if the probability of damage is minor but the damage that could occur in the event may be massive; an example in this respect would be nuclear power plants.

D. Defences

293 Von Caemmerer / Schlechtriem ( eds ), International Encyclopedia of Comparative Law IX / 5, 5-299.

sequence of events. If causation by such third party can be proven, the individual legal systems are confronted with the problem of deciding how the liability based on dangerousness and that based on the third party’s fault relate to each other proportionately.

6 / 154 In some cases of liability based on dangerousness, Austria and Germany allow the defence that the damage could not have been prevented even if » all care required in the circumstances of the case « were taken. On the one hand, this does implicate certain elements of liability for misconduct as the defendant’s conduct is taken as the basis and measured against a normative standard of care. On the other hand, the rules of liability based on dangerousness are clearly distinguished from the concept of carelessness, in this case by the requirement that the defendant must not only have exercised the usual care in order to escape liability but rather must prove that not even the exercise of maximum possible care would have been enough to prevent such damage. This defence is sometimes referred to under the heading » unavoidable event «.

6 / 155 There are another two defences for the defendant that relate to the claimant. Firstly, most – but by no means all – legal systems take into account any contributory responsibility of the victim with a view to at least reducing the keeper’s duty to compensate. The second defence is the claimant’s consent to the risk posed or to the damage.

E.The regulation of liability based on dangerousness

1.Introductory considerations

6 / 156 The arguments presented above indicate, on the one hand, that rules should be found to allow the strictness of the liability to be graded according to the gravity of the grounds for liability, in particular of the dangerousness. On the other hand, it has been shown that non-fault-based liability really is based on uniform ideas; thus, fairness demands that it also be uniformly regulated. Ultimately this can only be realised by means of a blanket clause 294, because the often suggested listing of sources of danger – as demonstrated by all previous attempts – always remains incomplete, as is indeed inevitable due to ongoing technical advances.

In the applicable legal systems of Europe, however, it is hard to find suitable examples for a general rule on liability based on dangerousness.

294In this sense, above all, Kötz, Haftung für besondere Gefahr, AcP 170 ( 1970 ) 19 ff; Widmer, Die Vereinheitlichung des Schweizerischen Haftpflichtrechts – Brennpunkte eines Projekts, ZBJV 1994, 405 f; Will, Quellen erhöhter Gefahr ( 1980 ) 70 ff. Likewise recently taking the reform drafts into consideration Pfeiffer, Entwürfe für ein neues österreichisches Schadensersatzrecht 36 ff.