Экзамен зачет учебный год 2023 / Koziol_BasicQuestions_Germanic

draft – using the existing methods of individual regulation 298.

The course of the discussions within the EGTL 299 on the rules for non-fault- based liability were both very fierce and very interesting and also showed forcefully the difficulties involved in finding a common approach in this field at a European level. The EGTL was, however, at least able to find consensus for a » small blanket clause « for sources of extraordinarily high danger, which should be complemented by the national individual regulation on sources of high danger 300.

295Widmer, the author of the Swiss Draft, opened up the debate on a blanket clause early on; see: Gefahren des Gefahrensatzes – Zur Problematik einer allgemeinen Gefährdungshaftung im italienischen und schweizerischen Recht, ZBJV 1970 289 ff.

296See, eg, B.A. Koch / Koziol, Austria 37; Galand-Carval, France 142; Fedtke / Magnus, Germany 172, all in: B.A. Koch / Koziol, Unification: Strict Liability.

297Cf, eg, du Perron / van Boom, Netherlands 251 f; W.V.H. Rogers, England 123, both in B.A. Koch / Koziol, Unification: Strict Liability.

298DCFR, PEL Liab Dam 3 : 202 ff; on this PEL / von Bar, Liab Dam, Chapter 3, Art 3 : 202 ff; Widmer, Europa ohne Verschulden. Verschuldensunabhängige Haftungen in den Entwürfen eines europäischen Deliktsrechts, Posch-FS ( 2011 ) 836 ff.

299European Group on Tort Law ( ed ), Principles of European Tort Law. Text and Commentary ( 2005 ) 101 ff; Widmer, Posch-FS 831 ff.

300On the two drafts see Jansen, Principles of European Tort Law ? Grundwertungen und Systembildung im europäischen Haftungsrecht, RabelsZ 2006, 732 ff; Koziol, Die » Principles of European Tort Law « der » European Group on Tort Law «, ZEuP 2004, 234 ff; Oertel, Objektive Haftung 261 ff; Schmidt-Kessel / S.B. Müller, Reform des Schadenersatzrechts I: Europäische Vorgaben und Vorbilder ( 2006 ) 74 ff; G. Wagner, Deliktsrecht, in: Schulze / von Bar / Schulte-Nölke ( eds ), Der akademische Entwurf für einen Gemeinsamen Referenzrahmen ( 2008 ) 161 ff; Widmer, Posch-FS 827 ff.

6 / 160 The Austrian Draft contains a blanket rule for liability based on dangerousness. § 1304 of the Austrian Draft 301 does draw on previous models – in particular the Swiss Draft – but also sets out considerable changes on the basis of critical, further-reaching and fertile debate.

V.  Permitted interference

A. Liability in the case of permitted interference

6 / 161 In certain cases the legal systems not only allow people to put others at increased risk, under consideration that the infliction of damage must be avoided as far as possible, it even permits certain infliction of damage or deliberate interference 302. The most important example of this is liability for authorised installations ( § 364 a ABGB; § 906 ( 2 ) BGB ): the entrepreneur may impact his neighbours negatively and deliberately within the scope covered by the authorisation. As the neighbour who suffers the nuisance is denied the usual defensive actions, a link to expropriation is also emphasised. A further example is that of the defence of necessity, which according to § 1306 a ABGB, § 904 BGB gives rise to a duty to compensate.

If the legal system allows interference with third-party goods against compensation for the damage so inflicted, then this is a case of diminished protection of recognised interests: such are no longer protected against real interferences, the owner of the goods is denied their defensive rights. The legal system nonetheless continues to protect the allocated value of these goods and grants the victim of the interference compensation for his loss. The principle is thus the same as in cases of expropriation: due to overriding interests the owners are required to tolerate interferences, but are still entitled to compensation of their loss; they should retain the value of their goods.

B.Difference between liability based on dangerousness and liability for permitted interference

6 / 162 In the case of liability for dangerousness, the legal system only allows an abstract endangerment at the most, but not the actual infliction of damage; in cases of lia-

301On this, eg, Griss, Gefährdungshaftung, Unternehmerhaftung, Eingriffshaftung, in: Griss / Kathrein / Koziol, Entwurf 57 ff; Apathy; Schadenersatzreform – Gefährdungshaftung und Unterneh­ merhaftung, JBl 2007, 205 ff with additional references.

302On this F. Bydlinski, System und Prinzipien 204 f; Koziol, Haftpflichtrecht I3 no 6 / 13.

bility for permitted interference, on the other hand, it is the actual infliction of damage which is allowed 303. As Rummel 304 highlights, this difference is material in understanding when an interference and when an endangerment is to be allowed: as even intentional damage infliction is allowed in cases of liability for interference, it must be required that the legal good injured in the specific case is of less value than the interest being enforced. On the other hand, if the issue is the permit for a dangerous plant, not only the goods endangered and the interest in the dangerous activity must be compared but the probability of the damage occurring must also be taken into consideration.

In the law, however, these two types of liability are not always distinguished 6 / 163 clearly. Jabornegg 305 has convincingly argued that § 364 a ABGB not only regulates

an instance of liability for interference but also of liability for dangerousness. He assumes that when it comes to permitting plants, not only the nuisance necessarily emanating from the plant is taken into account but also the dangers posed by the plant; it would be strange indeed when such specific dangerousness remained completely disregarded, for example under § 364 a ABGB, he argues.

VI.  Economic capacity to bear the burden

The Austrian law of damages only takes into account financial circumstances in 6 / 164 two exceptional cases: liability of those who act out of necessity ( § 1306 a ABGB )

and the liability of young people under the age of responsibility or the mentally ill ( § 1310 ABGB ); in respect of the latter field, § 829 BGB also takes the – economic – circumstances into consideration. In both cases the crux is that the damaging party cannot be accused of any subjective fault. However, someone who acts out of necessity interferes with third-party goods, ie acts in a manner fulfilling the factual elements of the wrong: young people under the age of responsibility and the mentally ill can at least be accused of not complying with the objective duties of care, ie acting wrongfully. In these cases, the liability criterion of their capacity to bear the economic burden steps in in place of subjective fault as the additional ground 306:

303Cf on this Esser, Grundlagen und Entwicklung der Gefährdungshaftung ( 1941 ) 91; Rummel, Ersatzansprüche bei summierten Immissionen ( 1969 ) 81 ff; OGH 8 Ob 501 / 92 in ÖZW 1994, 109

( Rummel ).

304Ersatzansprüche 96 ff.

305Bürgerliches Recht und Umweltschutz, Gutachten zum 9. ÖJT ( 1985 ) 74 ff. Following this line Gimpel-Hinteregger, Grundfragen der Umwelthaftung ( 1994 ) 320 ff.

306See on this F. Bydlinski, System und Prinzipien 218 ff; Koziol, Haftpflichtrecht I3 no 7 / 1 ff; Schilcher, Posch-FS 672 ff.

the financial circumstances of the victim and the damaging party must be considered. The issue is whether this idea of taking the economic circumstances into consideration should be applied more generally; in particular it could be useful when it comes to recognising subjectively understood fault in order to cushion this liability-restricting criterion ( see above no 6 / 86 ), and above all be incorporated into a » reduction clause « 307.

6 / 165 In particular when the stringent liability of larger enterprises is concerned, the argument of economic capacity to bear the burden, ie the » deep-pocket argument «, often plays a significant role. However, such arguments do not apply in most cases, even from an economic perspective: if an entrepreneur is sued for damages, recourse is had first to his assets but it must be borne in mind that the entrepreneur will pass on the damage he has to bear by means of price increases to his clients. This means ultimately that precisely such group of persons has to bear the damage as was supposed to be protected from it 308.

VII.  Realisation of profit

A. The abstract possibility of realising profit

6 / 166 As already explained above ( no 6 / 139 ), it is a common view that someone who holds an especially dangerous thing to his advantage, must also bear the associated disadvantage; this is one of the foundations for recognising liability based on dangerousness.

6 / 167 Another important example for the material nature of the idea of who realises the profit can be found in Austria in the non-fault-based risk liability of the principal 309. § 1014 ABGB contains not only the rather self-evident rule that the principal must compensate the contractor for culpably inflicted damage but also the far more significant provision that the principal must also compensate the contractor for the damage associated with the fulfilment of the contract. This includes such damage as results from the typical risks involved in the performance of the contract 310.

307See F. Bydlinski, System und Prinzipien 225.

308Cf Faure, Economic Analysis, in: B.A. Koch / Koziol, Unification: Strict Liability 382.

309Canaris, Risikohaftung bei schadensgeneigter Tätigkeit in fremdem Interesse, RdA 1966, 42; Fitz, Risikozurechnung bei Tätigkeit in fremdem Interesse ( 1985 ); F. Bydlinski, Die Risikohaftung des Arbeitgebers ( 1986 ); W. Faber, Risikohaftung im Auftragsund Arbeitsrecht ( 2001 ); Apathy, Risikohaftung des Arbeitgebers für Personenschäden ? JBl 2004, 746; Kissich, Risikohaftung des Arbeitgebers analog § 1014 ABGB auch für Personenschäden, ZVR 2005, 184.

310Fitz, Risikozurechnung 82 ff; F. Bydlinski, Risikohaftung 63 ff.

§ 1014 ABGB according to Wilburg: the enterprise combines the advantages and disadvantages of an activity in its economic association 316. If the contractor takes a risk upon himself, then this is a means to serve the purpose of the entrepreneur, writes Wilburg. The assumption of the risk represents a cost in the broader sense, which in case of doubt should be borne by the principal.

F. Bydlinski 317presents a very similar argument: risk liability for an activity in the interests of a third party is based on the combination of two liability criteria, specifically the idea of advantage and the idea of a specific risk being produced. The risk liability is imposed on the person who posed a specific risk by delegating an activity and who draws an advantage from this, he writes. F. Bydlinski 318 also clarifies what is special in this case and leads to risk liability precisely in the case

311Handeln auf fremde Gefahr, Jherings Jahrbücher 33 ( 1894 ) 325 ff.

312See F. Bydlinski, System und Prinzipien 202.

313Stanzl in Klang, ABGB IV / 12 849.

314Wilburg, Elemente 30; Reinhardt, Verhandlungen des 41. Deutschen Juristentages ( 1955 ) 276 ff; Canaris, Die Gefährdungshaftung im Lichte der neueren Rechtsentwicklung, JBl 1995, 6.

315Fitz, Risikozurechnung 47 f.

316Wilburg, Elemente 32 and 136 f; cf also idem, Der Unternehmer im Schadensrecht, Jahrbuch der Universität Graz ( 1940 ) 58 and 64; idem, Zusammenspiel der Kräfte im Aufbau des Schuldrechts, AcP 163 ( 1964 ) 346.

317Risikohaftung 56 f, 80 f.

318Risikohaftung 83 ff.

of such a mandate: the remuneration is paid merely for the activity, the effort, but not for a particular outcome; apart from the remuneration all advantages and disadvantages of the activity should affect the principal. The contractor thus acts overall » at the account and risk « of the principal.

6 / 170 These arguments already provide indications that the notion that advantages and risks should fall to the same party is material for a much broader field than just liability for risk under § 1014 ABGB, namely for the recognition of a more stringent enterprise liability 319. However, further criteria are also decisive in this respect; this is looked at more closely below under no 6 / 192 ff.

B. Concrete gain of an advantage

6 / 171 Until now there has been little discussion 320 of how much a concrete advantage that the damaging party has gained can influence the justification and scope of liability. It is noteworthy that the ABGB even sets out the very general principle that no one should profit from the damage to another ( §§ 921, 1447 ABGB ). However, this sentence is merely a general guideline requiring a great deal of specification, as is shown even by permitted competition: the fair, successful competitor derives profit from squeezing out his rivals, but is of course not obligated to compensate those who lost out, ie the victims. Nonetheless, the principle still provides a certain guidance, namely that when the basic grounds for liability are satisfied, the gaining of an advantage may be relevant for the scope of liability or the compensation.

Moreover, § 1306 a ABGB is based on the notion of gaining an advantage: someone who acts out of necessity avails of third-party goods to avert his need, ie certainly derives an advantage from so doing. This criterion is important in relation to liability in necessity because the damaging party ( in the case of necessity as justification ) cannot even be accused of infringing a duty of care but only of injuring third-party goods.

6 / 172 There should be consideration of whether regard to advantages gained by the damaging party should be recognised as a general principle, both when it comes to establishing any duty to compensate and also in assessing the extent of compensation due. It is true that the compensation claim will often be relatively insignificant because profit can be disgorged in any case via an action for unjust enrichment – which is subject to less stringent requirements. Nonetheless, there are certainly cases in which the law on unjust enrichment does not offer any solutions. For instance, in the case of competition violations, claims for unjust enrichment

319Thus, also, eg, Jansen, Struktur des Haftungsrechts 626 f.

320However, see Wendehorst, Anspruch und Ausgleich ( 1999 ); Koziol, Die Bereicherung des Schädigers als schadenersatzrechtliches Zurechnungselement ?, F. Bydlinski-FS ( 2002 ) 175 ff.

by no means always arise 321; furthermore, claims for unjust enrichment are often precluded when it comes to destruction of third-party goods or when contractual duties to desist from doing something are infringed; likewise probably when the mass media increase their turnover with completely made-up reports about people in the public eye.

In my opinion, the fact that a damaging party gains a specific advantage as a 6 / 173 result of his conduct cannot by itself lead to liability to compensate the disadvantage caused in the absence of any further criteria; and fair competition shows

very clearly that this is not the case. Nonetheless, it would be worth considering whether the specific gaining of an advantage should mean that the damaging party should become liable to pay compensation in the absence of subjective fault, ie for merely objectively unlawful conduct ( see above no 6 / 11 ).

Furthermore, it should be debated whether any specific profit gained by the damaging party should also play a role when it comes to establishing the extent of the damages. For instance, the victim might be entitled to compensation for loss of profit if and insofar as the damaging party gained an advantage. This could be relevant when no comprehensive compensation is due according to the general rules – for example, in the case of slight negligence ( § 1332 ABGB ).

Finally, it should also be examined whether the compensation of non-pecu- niary damage should be awarded in greater measure if the perpetrator gained an advantage. This would be particularly relevant if non-pecuniary damage was only recoverable under the general rules in the case of serious fault.

VIII.  Insurability and having insurance cover

A. Feasibility of insurance

For a long time it has been argued that the feasibility of insurance cover may be 6 / 174 decisive as a liability element in respect of legislating on liability 322. Basically, this

idea is related to that of capacity to bear the economic burden. The difference, however, is that it is not the actual financial circumstances of the parties involved that are material but general considerations regarding the stipulation of a rule on bearing the damage.

321On this Rummel, Zur Verbesserung des schadenersatzrechtlichen Schutzes gegen unlauteren Wettbewerb, JBl 1971, 385.

322Wilburg, Elemente 24 ff; Ehrenzweig, Versicherung als Haftungsgrund, JBl 1950, 253; Rodopoulos, Kritische Studie der Reflexwirkung der Haftpflichtversicherung auf die Haftung ( 1981 ) 32 ff; Jansen, Struktur des Haftungsrechts 385 f, 630 f; Schilcher, Posch-FS 687 f.

It should be highlighted that this liability ground does not have the power to bear liability by itself. Nonetheless, it can contribute decisively in connection with other factors, to establishing liability. Thus, the notion of insurability certainly plays a role when it comes to liability based on dangerousness but also in the case of product liability: it is more possible and reasonable for someone who holds a source of danger, eg a motor vehicle, or the entrepreneur who places the products on the market, to procure insurance cover against the risk known to him and thus to make such risk calculable. In the field of product liability, the producer is really in a better position to take out third-party liability insurance. However, the decision on the propitiousness of third-party liability insurance on the one hand, and of self-insurance on the other, will not always be so easy to take and other aspects must also be taken into account.

6 / 175 It must be emphasised that not only can better insurability on the part of the damaging party be decisive to establish liability, but also that better insurability on the part of the victim can be a valid argument against finding for liability 323. The administration costs that would be associated with the relevant system choice would however be very weighty 324.

B. Actual insurance cover

6 / 176 While insurability may be a decisive argument in favour of a general stipulation of liability, the actual existence of third-party liability insurance cover in the specific case does not mean per se that a duty to compensate should be imposed 325: according to the » Trennungstheorie « ( separation theory ), third-party liability insurance is intended only to cover an existing liability – justified by other reasons, it does not serve to establish liability 326.

323On all of this M. Fuchs, Versicherungsschutz und Versicherbarkeit als Argument bei der Schadensverteilung, AcP 191 ( 1991 ) 339.

324Brüggemeier, Haftungsrecht 639; Calabresi, The Costs of Accidents ( 1970 ) 28 f; G. Wagner, Comparative Report and Final Conclusions, in: G. Wagner, Tort Law 351 f; Wantzen, Unternehmens­ haftung 124.

325Nonetheless, it is probable that courts – without disclosing this – do take the existence of thirdparty insurance into account when deciding on the liability for damage; cf G. Wagner, Tort Law and Liability Insurance, in: Faure, Tort Law 402.

326On this von Bar, Das » Trennungsprinzip « und die Geschichte des Wandels der Haftpflichtversicherung, AcP 181 ( 1981 ) 289 ff; Becker, Der Einfluß der Haftpflichtversicherung auf die Haftung ( 1996 ) 76 ff; M. Fuchs, AcP 191 ( 1991 ) 318; Kerschner, Freiwillige Haftpflichtversicherung als » Vermögen « iS des § 1310 ABGB ? ÖJZ 1979, 282: Rodopoulos, Reflexwirkungen 38 ff. Cf, however, the counter-examples provided by Armbrüster, Auswirkungen von Versicherungsschutz auf die Haftung, NJW 2009, 187 ff.

opportunity is availed of as well as to the ability to bear the damage. In response to the accusation that the case law is based on circular reasoning, Rubin stresses that in fact only the insuree’s entitlement to benefits depends on liability under the law of tort, which has already been triggered, whereas according to § 1310 ABGB

327See on this from a comparative perspective Martín-Casals, Comparative Report, in: MartínCasals, Children I 433 and the country reports cited.

328On this fundamentally F. Bydlinski, System und Prinzipien 218 ff.

329From more recent times, eg OGH in 4 Ob 65 / 99h in JBl 1999, 604; 7 Ob 200 / 98g in ZVR 2000 / 25. See further S. Hirsch, Children as Tortfeasors under Austrian Law, in: Martín-Casals, Children I 18 ff with additional references.

3305 Ob 76 / 74 in SZ 47 / 43.

3316 Ob 631 / 79 in SZ 52 / 168.

332Harrer in Schwimann, ABGB VI3 § 1310 no 22; Deutsch, Haftung und Versicherung, JBl 1980, 299 f; Schilcher, Posch-FS 675 f.

333On this G. Wagner in MünchKomm, BGB V5 § 829 no 19 ff.

334G. Wagner in MünchKomm, BGB V5 § 829 no 21.

335Rubin,BilligkeitshaftungDeliktsunfähigerundVersicherungsschutz,in:Koban / Rubin / Vonkilch ( eds ), Aktuelle Entwicklungen im Versicherungsrecht ( 2005 ) 102 ff. In agreement Schilcher, Posch-FS 676.

and § 829 BGB the insurance cover as state of » being insured « is decisive and this does not depend on the liability but on the insurance policy. Furthermore, Rubin assumes with good reason that the insurance policies do indeed cover the » equitybased liability « of children not yet capable of committing a tort.

IX.  The notion of a risk community

6 / 179 Whereas the individual advantage is taken as the starting point above under » G. Realisation of profit « ( no 6 / 166 ff ), the idea of a risk community is based on the notion that a group of people derive benefits from the source of danger. This notion plays a decisive role above all in regulating cover of damage in the context of motor vehicle accidents, and more recently for applying product liability more strictly.

6 / 180 Initially, it was certainly the fear of technical development that was in the foreground when it came to motor vehicle liability and the dangerousness of the vehicles was seen primarily as decisive. Nowadays, however, more regard is had to the activity, namely the use of the vehicle; on the whole, the more people take part in traffic, the more danger vehicle use gives rise to, since usually everyone makes mistakes. As, on the other hand, all road users profit from means of transport, not only the criterion of dangerousness speaks in favour of stricter, non-fault-based liability but also the notion of spreading the risk among all motor vehicle drivers. Ultimately this is also largely achieved by the association of a stringent liability with compulsory third-party liability insurance 336.

6 / 181 In more recent times, the notion of the risk community has acquired greater significance in our legal system, above all due to product liability. All European legal systems provide for non-fault-based liability for damage caused by defective products, this is largely in implementation of Directive 85 / 374 / EEC. Germany also introduced a special regime of product liability for medications.

The grounds cited in respect of product liability are various; the probability of damage occurring and the extent of the damage threatened, ie the dangerousness, are only ancillary arguments here, however. It has rightly been pointed out 337 that product liability only concerns the less grave dangerousness of defects in the individual product and not general liability for all of this type of thing 338. Widmer 339, on the other hand emphasises the organisational risk of the entrepreneur, which

336See on this in particular Gilead, Israel, in: B.A. Koch / Koziol, Unification: Strict Liability 196.

337Fedtke / Magnus, Germany, in: B.A. Koch / Koziol, Unification: Strict Liability 157.

338See on this B.C. Steininger, Verschuldenshaftung 38 ff.

339Switzerland, in: B.A. Koch / Koziol, Unification: Strict Liability 333.