Экзамен зачет учебный год 2023 / Koziol_BasicQuestions_Germanic

certainly may also play a certain role. Others, nonetheless, highlight the notion of a risk community of entrepreneur and buyers: when consumer goods are produced, economic factors dictate that the highest technical safety and quality standards are not observed, but this does not mean that the processes involved are wrongful. The lower production costs resulting from the lowered safety standards lead to lower prices for the products but also in an increased risk of damage. However, the idea is that the consumer who is injured by a defective product is asked to bear the harm while the other consumers are beneficiaries because they were able to purchase the goods at lower prices precisely because of the lower safety requirements. If all purchasers enjoy the advantage of the lower prices, the few purchasers who suffer damage due to defects should not be left alone with the damage sustained. Their harm should be compensated by the producer as such is in a position to shift these costs via price changes onto all clients and thus all beneficiaries 340. This means that all purchasers bear the disadvantages jointly as a kind of risk community. This rationale does not justify the liability of the producer towards external third parties, however.

X.  The interplay of liability criteria

A. In general

340See Gilead, Israel 194 and 197, as well as B.A. Koch / Koziol, Austria 20, in: B.A. Koch / Koziol, Unification: Strict Liability.

the intensity of the close relationship has considerable effects on the duties of care and their scope of protection: In contractual relationships, the duties are more comprehensive and also include the protection of pure economic interests. Many legal systems, on the other hand, show that even in the field of torts, for instance when it comes to knowing infliction of damage, there is liability even for pure economic loss although this is not normally the case outside of legal special relationships. In the case of intentional damage, ie misconduct of the most serious degree, on the other hand, even distant damage must be compensated as the adequacy limits and the protective scope of the norm are extended further. Vice versa, the insubstantiality of the grounds for liability fulfilled may lead to a limitation of liability, as is set out in the ABGB, eg, in respect of liability for slight negligence ( only the actual loss is recoverable ).

6 / 184 Finally, it must also be pointed out that almost all legal systems recognise a more or less broad area in which while the justification for compensation claims is still seen in fault, the liability stipulated is stricter than traditional fault-based liability. In this context, we may think of above all of the reversal of the burden of proof in respect of fault which leads to liability for merely assumed misconduct, or the elevation of the duties of care far above the normal standard. This interaction is important because – as we shall see – there is no clear borderline between faultbased liability and non-fault-based liability, in particular in the context of liability based on dangerousness; rather there are also interim areas.

6 / 185 A further example of the interplay of several factors: most European legal systems not only apply relatively strict liability based on dangerousness for motor vehicles, they also complement this by introducing compulsory third-party liability insurance. Two ideas are material in this context: on the one hand, the high degree of danger posed by fast travelling vehicles is taken into consideration, on the other hand, also the spread of risk ( cf above no 6 / 180 ). The latter is emphasised by Gilead when he explains that the stringent liability for motor vehicles was conceived in order to shift the burden of road traffic accidents to insurance companies 341. The notion of spreading the risk among all of those who enjoy the advantages of road traffic thus seems significant.

6 / 186 It is also highlighted 342 that the legislature tends toward liability independent of fault when the victim is faced with structurally-conditioned obstacles to proving fault. Such situations arise typically when the victim takes action against a complex organisation that controls access to all evidence. Examples would be the fields of producers’ or environmental liability. However, it must be remembered that it is not necessary that recourse is had to non-fault-based liability solely to

341Gilead, Israel, in: B.A. Koch / Koziol, Unification: Strict Liability 192.

342See Fedtke / Magnus, Germany, in: B.A. Koch / Koziol, Unification: Strict Liability 156.

resolve this problem: reversing the burden of proof would be sufficient to eliminate the typical obstacles faced by the victim, without straightaway abandoning the requirement of fault.

In the following, the interplay of the various liability criteria is demonstrated 6 / 187 by reference to a number of examples. This is to illustrate above all that a holis-

tic consideration of all criteria and the varying degree of fulfilment of the individual criteria is necessary. Furthermore, it should be shown that not only are the grounds for liability gradable but the legal consequences must also be defined elastically in accordance with the overall weight of the liability grounds.

B. The interplay of misconduct and dangerousness

One already time-honoured, very complex example is offered by the interplay 6 / 188 between the element of deficient conduct and that of dangerousness. It shows

that between the core area of fault liability and that of liability based on dangerousness there is a broad interim area with many gradations. This is true in all legal systems, but – as shown by a comparative law study 343 – the starting points in the individual countries are very different: on the one hand, Neethling in particular highlighted in respect of South Africa that the boundary between fault-based and danger-based liability was clearly drawn and that there was no grey area 344. W.V.H. Rogers, on the contrary emphasised that in England 345 strict liability and fault liability were traditionally understood as alternatives but that on closer examination there were not two separate categories but instead a continuing series. This view is shared by many 346.

The position that there are two clearly separate areas may derive from the fact that fault-based liability and liability based on dangerousness are based on two very different concepts 347: fault-based liability goes back to the idea that the damaging party must be held to account for the damage resulting from his culpable misconduct. In the context of liability based on dangerousness, this kind of culpability is not decisive: if someone enters into the abstract risk of endangering

343B.A. Koch / Koziol, Unification: Strict Liability.

344Neethling, South Africa, in: B.A. Koch / Koziol, Unification: Strict Liability 269. In the same sense also here the Czech report by Tichý, 75 ff and 80; and the Israeli report by Gilead, 183.

345W.V.H. Rogers, England, in: B.A. Koch / Koziol, Unification: Strict Liability 101.

346See references for German, French, Italian, Dutch, Austrian and Spanish law in the Comparative Conclusions in: B.A. Koch / Koziol, Unification: Strict Liability 432. Further, Gilead, The » Continuum « of Tort Liability and Israeli Law, Koziol-FS ( 2010 ) 623 ff; Jansen, Struktur des Haftungsrechts 14 ff, 551 ff.

347On this Canaris, Die Gefährdungshaftung im Lichte der neueren Rechtsentwicklung, JBl 1995, 15 ff.

others, this is frequently not forbidden by the legal system; quite to the contrary, operating a railway or a nuclear power plant 348 is in fact desired due to the overriding interests of the public. Nevertheless, liability is set out in this respect, based on the notion that he who derives the advantage from a dangerous activity must also bear the disadvantage.

6 / 189 However, in the end most supporters of the separation theory admit that the areas of fault liability and liability based on dangerousness do not form uniform, closed units and that in fact there are many levels of differentiation. Thus, with respect to fault-based liability, even Neethling 349 emphasises that the more dangerous the things used are, the greater the care required. He is right of course when he stresses that even still the primary question is whether the damaging party acted culpably, ie engaged in misconduct. Nonetheless, it must be accepted that in such cases it is precisely the dangerousness of the things used by the damaging party that renders the duties of care exacting and thus the liability more stringent.

Furthermore, Gilead 350 points out that all forms of fault-based liability deviate from its basic principle and approach » strict « liability when fault is assessed objectively; for the specific perpetrator this leads to liability even without personal culpability and thus is similar to strict liability. Gilead also emphasises that the limits of fault-based liability are crossed when the objective standard of care can be complied with by no one or by very few people. These very true statements show that there is no clear boundary between fault and strict liability.

6 / 190 It must also be noted that protective laws, which prohibit even abstract endangerment involve a more stringent standard of fault liability, as the fault must no longer be related to the concrete endangerment of a good ( above no 6 / 78 ). Similar applies to Verkehrssicherungspflichten ( duties to protect interests of others against risks one has established by his activity or property ). Furthermore, the reversal of the burden of proof in relation to fault also leads to more stringent liability: if the damaging party does not succeed in proving he was not at fault, he is liable merely on the basis of presumed fault.

6 / 191 Just as fault-based liability varies, so too can liability based on dangerousness, which does not primarily concern conduct, have different levels of strictness according to different levels of dangerousness. This results above all from the various kinds of defence allowed, which display a considerable range. The strictest gradation of liability include those rules which take as a sole base the keeping of a

348There is an exception in Austria: the erection and operation of nuclear power plants is not allowed.

349Neethling, South Africa, in: B.A. Koch / Koziol, Unification: Strict Liability 269; likewise du Perron / van Boom, Netherlands 227 and 244; B.A. Koch / Koziol, Austria 9 and G.T. Schwartz, United States 351, ibid.

350Gilead, Israel 184; likewise Galand-Carval, France 128; Martín-Casals / Ribot / Solé, Spain 282; du Perron  / van Boom, Netherlands 227; all in: B.A. Koch / Koziol, Unification: Strict Liability.

source of danger and do not admit any defences at all. A somewhat milder gradation is when some very specific defences can lead to exemption from liability, eg war or slightly more expansively, force majeure. The defences can also be very extensive, even freeing the damaging party from liability if he has exercised every thinkable care – ie a very high standard of care; this already brings liability based on danger very much into the vicinity of fault-based liability. This milder version of liability based on dangerousness transits fluidly into fault-based liability 351.

C.Enterprise liability

1.International trends

Art 4 : 202 ( 1 ) of the PETL 352 provides for specific enterprise liability linked to a 6 / 192 defect of the enterprise and objective carelessness – however, with reversal of the burden of proof 353. In drafting this provision, the EGTL did not follow the example

of the producer’s liability in EU Directive 85 / 374 ( on this see below no 6 / 201 ff ) 354, instead choosing to provide for much milder general enterprise liability.

The EGTL took their inspiration from Art 49 a of the Swiss Draft for an overall reform of tort law. This rule covers the entrepreneurial risks of the organisation and renders liability more stringent by reversing the burden of proof in relation to whether there was a defect of the enterprise’s organisation. Thus, it covers only the organisational risks but not other defects of the enterprise, such as in the technical equipment. This limitation to just part of the defects in the enterprise does not seem fitting 355, which is why the EGTL extended enterprise liability to all defects of the enterprise, its products and services. The PETL, in turn, influenced the Austrian Draft 356.

351Cf on this also Englard, The Philosophy of Tort Law ( 1993 ) 21; Koziol, Bewegliches System und Gefährdungshaftung, in: F. Bydlinski / Krejci / Schilcher / V. Steininger ( eds ), Das bewegliche System im geltenden und künftigen Recht 51.

352The Principles of European Law on Non-Contractual Liability Arising out of Damage Caused to Another from the Study Group on a European Civil Code do not contain any special rule on enterprise liability.

353See on this B.A. Koch, Enterprise Liability, in: EGTL, Principles 93 ff.

354B.A. Koch in: EGTL, Principles 95 f.

355For further concerns see, eg, G. Wagner, Grundstrukturen des Europäischen Deliktsrechts, in: Zimmermann, Grundstrukturen: Deliktsrecht 302 f; Koziol, Der Schweizer Vorentwurf für einen Allgemeinen Teil des Haftpflichtrechts aus der Nachbarschaft betrachtet, SVZ 65 ( 1997 ) 151 f.

356See on this with additional references Griss, Der Entwurf eines neuen österreichischen Scha­ denersatzrechts,­ JBl 2005, 278 f; Griss, Gefährdungshaftung, Unternehmerhaftung, Eingriffshaftung, in: Griss / Kathrein / Koziol, Entwurf 62 ff; Koziol, Die außervertragliche Unternehmerhaftung im Diskussionsentwurf eines neuen österreichischen Schadenersatzrechts, JBl 2006, 18; Apathy, Schadenersatzreform – Gefährdungshaftung und Unternehmerhaftung, JBl 2007, 215 ff.

2. The decisive grounds for making liability stricter

6 / 193 In particular the principle of commutative justice speaks in favour of making enterprise liability stricter 359; according to this principle the advantages and risks should fall to the same party ( see above no 6 / 105 ) and thus be concentrated in the enterprise.

6 / 194 Furthermore, the insurability of the risk and accordingly the chance to socialise the liability risk via insurance cover are presented as arguments 360. In the field of enterprise liability, however, it must be remembered that while the entrepreneur is often more likely to be in a better position to take out third-party liability insurance than his clients will be to cover their possible disadvantages by insurance, it will not always be easy to see whether third-party liability insurance on the one hand is more reasonable than personal insurance on the other – in particular social insurance that largely covers personal damage; therefore this aspect should not be weighed too heavily.

6 / 195 In particular when the stringent liability of larger enterprises is concerned, the argument of capacity to bear the economic burden, ie the » deep-pocket argu-

357 Cf, eg, Brüggemeier, Haftungsrecht 119 ff with additional references; idem, Unternehmenshaftung – Enterprise Liability. Eine europäische Perspektive ? HAVE 2004, 162 ff; Faure, Towards an Expanding Enterprise Liability in Europe ? MJ 1996, 235 ff; G. Wagner in: Zimmermann, Grundstrukturen: Deliktsrecht 303 ff.

358 On the discussion as to whether this liability should be » strict liability « or based on » negligence « see Priest, The Invention of Enterprise Liability: A Critical History of the Intellectual Foundations of Modern Tort Law, J Legal Stud 14 ( 1985 ) 461 ff; G.T. Schwartz, The Beginning and the Possible End of the Rise of Modern American Tort Law, Ga L Rev 26 ( 1992 ) 601 ff; Keating, The Theory of Enterprise Liability and Common Law Strict Liability, Vand L Rev 54 ( 2001 ) 1285 ff; Henderson, Why Negligence Dominates Tort, UCLA L Rev 50 ( 2002 ) 377 ff; Wantzen, Unternehmenshaftung und Enterprise Liability ( 2007 ) 136 ff. Arlen / Kraakman, Die Neustrukturierung der Unternehmenshaftung; Ott / Schäfer ( eds ), Die Präventivwirkung zivilund strafrechtlicher Sanktionen ( 1999 ) 303 ff.

359 See F. Bydlinski, System und Prinzipien 202.

360 Cf on this in particular Wilburg, Der Unternehmer im Schadensrecht, Jb der Universität Graz ( 1940 ) 58 and 64; idem, Elemente 32; idem, Zusammenspiel der Kräfte im Aufbau des Schuld­ rechts, AcP 163 ( 1964 ) 346; Ehrenzweig, Negligence without Fault. Trends towards an Enterprise Liability for Insurable Loss ( 1951 ); Canaris, Die Gefährdungshaftung im Lichte der neueren Rechtsentwicklung, JBl 1995, 6 f, Wantzen, Unternehmenshaftung 72 ff, 152 ff. For comparative law details see B.A. Koch / Koziol, Comparative Conclusions, in: B.A. Koch / Koziol, Unification: Strict Liability 412.

361B.A. Koch / Koziol in: B.A. Koch / Koziol, Unification: Strict Liability 411.

362B.A. Koch / Koziol in: B.A. Koch / Koziol, Unification: Strict Liability 411; B.A. Koch, Enterprise Liability, in: EGTL, Principles 94 f; G. Wagner in MünchKomm, BGB V5 § 823 no 385.

363On this ground for liability in particular Wilburg, Elemente 1 ff. I consider it too one-sided when G. Wagner in MünchKomm, BGB V5 § 823 no 388 ff; idem, in: Zimmermann, Grundstrukturen: Deliktsrecht 290 ff, seems only to look at the inappropriate behaviour of the auxiliaries in the context of enterprise liability, but fails to mention other defects.

364See Koziol, Haftpflichtrecht I3 no 1 / 5 with additional references; B.C. Steininger, Verschuldens­ haftung 91 ff.

365B.C. Steininger, Verschuldenshaftung 35 ff.

366Cf on this Müller-Erzbach, Gefährdungshaftung und Gefahrtragung, AcP 106 ( 1910 ) 365 ff; Esser, Grundlagen und Entwicklung der Gefährdungshaftung ( 1941 ) 97 ff; Koziol, Haftpflichtrecht I3 no 6 / 11.

damage was exercised, the entrepreneur’s duty to compensate is precluded under this provision. In this respect it is required that the entrepreneur is subject to » Verkehrssicherungspflichten « due to the dangerousness brought about by the specific defectiveness, which in particular stipulate that the entrepreneur must become active in order to prevent the realisation of the danger existing within his sphere 367.

However, even this link to defective, namely careless conduct does not mean that ordinary fault-based liability is at issue. In relation to such, this liability for damage is certainly more stringent to the extent that the entrepreneur – as already mentioned – can only free himself from liability by proving that the care necessary to prevent the damage was exercised. Moreover, the entrepreneur is not already exonerated by the proof that he was subjectively not at fault, instead he must also prove the exercise of the care necessary according to an objective evaluation 368. Thus, he is still held accountable for the damage if he was prevented by subjective reasons ( absence, illness ) from hindering the damage 369; this corresponds insofar with the present-day – at least according to widespread understanding – liability of the owner of a building ( § 1319 ABGB, § 836 BGB ) 370 or of an animal ( § 1320 ABGB, § 833 sentence 2 BGB ) 371.

6 / 199 Furthermore, the Austrian Draft does not rely solely on the exercise of the necessary care by the entrepreneur himself; rather it is decisive that the measures necessary to prevent the damage were taken as a whole within the enterprise. The entrepreneur is thus also liable if one of his auxiliaries did not take the necessary measures; hence, a farther-reaching accountability for the misconduct of auxiliaries is provided in the field of tort than under the general rules of liability for Besorgungsgehilfen ( cf above no 6 / 115 ff ).

6 / 200 Finally, it must be highlighted that under § 1302 ( 3 ) of the Austrian Draft the more stringent enterprise liability does not include the compensation of pure eco-

367See on this above all von Bar, Verkehrspflichten. Richterliche Gefahrsteuerungsgebote im deutschen Deliktsrecht ( 1980 ) 160 ff.

368By means of this rule, the excessively close tie with breach of organisational duties, which is advocated in Germany to close the gaps left by § 831 BGB is avoided; see on this G. Wagner in MünchKomm, BGB V5 § 823 no 388 ff, § 831 no 11 and 32 ff.

369This is significant although the entrepreneur is frequently an expert and thus subject to an objective standard of fault both under today’s law ( § 1299 ABGB ) and the Austrian Draft ( § 1300 ( 4 ) ). However, this only applies to the special abilities and knowledge for the exercise of the activity engaged in; impediments such as absence or illness, on the other hand, must also be considered when assessing the fault on the part of an expert.

370Thus, also OGH 1 Ob 129 / 02 f in ZVR 2003 / 37; see further Koziol, Haftpflichtrecht II2 400 f; Terlitza, Die Bauwerkehaftung ( § 1319 ABGB ) ( 2000 ) 279 ff. Going even further Reischauer in Rummel, ABGB II / 13 § 1319 no 15.

371See Danzl in KBB, ABGB3 § 1320 no 4; G. Wagner in MünchKomm, BGB V5 § 833 no 47 f ( in the heading above no 36, on the other hand, he writes of fault-based liability ).

nomic loss 372; therefore, only the general liability rules apply to damage of this kind. This limitation is intended to ensure that the extended, extra-contractual 373 accountability of entrepreneurs does not lead to a proliferation of liability.

D. The example of product liability

372On this term see above no 6 / 47.

373However, in the field of general contractual liability, which would often apply in this context, there is in principle also liability for pure economic loss.

374The proposal by the Commission in 1990 for a corresponding directive on liability for services met strong resistance and was withdrawn. On this draft see F. Bydlinski, Zur Haftung der Dienst­ leistungsberufe in Österreich und nach dem EG-Richtlinienvorschlag, JBl 1992, 341 ff.

by things or facilities, the specific dangerousness of defects required under the product liability rules is not enough to justify a liability completely regardless of any misconduct, ie a real and, due to the lack of any possible defences, extremely strict liability based on dangerousness. This is because, as already explained in no 6 / 197 general dangerousness and usefulness are interrelated. The specific dangerousness posed by a defect in the individual case is not at all useful on the other hand; rather it runs contrary to the interests of the producer.

6 / 203 As shown in the previous section, the material ideas behind enterprise liability cannot justify such strict non-fault-based product liability. The extremely stringent liability for defective products can ultimately only be justified in respect of a sub-area, and this by combining the generally decisive criteria for enterprise liability with the notion of the risk community: if the producer serves as clearing house for all damage caused by his products, he can pass on all the compensation costs to his clients in general, who are the ones who draw advantages from the products. In particular, the non-fault-based product liability law has the effect that the position of the entrepreneur is approximated with that of an insurer, when seen from a functional perspective: the liability risks generated by this legal area are taken into account by the enterpreneurs in their price calculations, so that the clients may be understood as a risk community, who from an economic perspective end up bearing the costs of the provisions for liability risks on the part of the entrepreneur 375. This idea only applies when the acquirer of the goods suffers damage, but not when damage is suffered by outside third parties. Given the fact that the factor of dangerousness due to the simple existence of a threat posed by the defect in the product is not present to the same degree as in other cases of strict liability, however, the circle of protected interests must be narrower and pure economic loss must be excluded; furthermore, defences ( eg force majeure ) should be admitted to a greater degree.

XI.  Contributory responsibility of the victim 376

A. Introduction

6 / 204 § 1304 ABGB and § 254 sec 1 BGB lay down the basic rule that the victim does not lose his entire claim to compensation in the case of contributory responsibility for the damage – as was often the case in the past 377, but that damage will be appor-

375Wantzen, Unternehmenshaftung und Enterprise Liability ( 2007 ) 84 ff.

376This section is based on my contribution: Die Mitverantwortlichkeit des Geschädigten: Spiegelbildoder Differenzierungsthese ? Deutsch-FS ( 2009 ) 781 ff.

377Brüggemeier, Haftungsrecht 594 ff; Hausmaninger, Das Mitverschulden des Verletzten und die Haftung aus der lex Aquilia, in: Gedächtnisschrift für H. Hofmeister ( 1996 ) 237 ff; Koziol, Die