Экзамен зачет учебный год 2023 / Koziol_BasicQuestions_Germanic

1

Chapter 1

Introduction

I.  The victim’s own risk and shifting of the damage

1See Zimmermann, Obligations 154, who refers to Wacke, Gefahrerhöhung als Besitzverschulden, Hübner-FS ( 1984 ) 670 ff; Brüggemeier, Gesellschaftliche Schadensverteilung und Deliktsrecht,

AcP 182 ( 1982 ) 393, refering to Holmes, Common Law ( 1881 ) 76.

2This provision reads: » The consequences of mere chance are borne by the person whose patrimony or person is thereby affected.«

3See Weyers, Unfallschäden. Praxis und Ziele von Haftpflichtund Vorsorgesystemen ( 1971 ) 486 ff;

Deutsch, Haftungsrecht2 no 1; Brüggemeier, Gesellschaftliche Schadensverteilung und Delikts­ recht, AcP 182 ( 1982 ) 392 f with further references.

4Larenz / Canaris, Schuldrecht II / 213 § 75 I 2 a. For reservations with regard to this principle see Looschelders, Bewältigung des Zufalls durch Versicherung ? VersR 1996, 529, 538.

that the individual can be cocooned away from all risks; that someone else is always responsible for any damage the individual suffers, and thus each victim’s loss must always be covered 5. However, this overlooks the undeniable fact that compensation to the victim does not eliminate the damage from existence but merely passes it on to someone else, hence the damage is merely shifted and someone else suffers a loss by having to cover it 6. When this is taken into consideration, it becomes clear how completely illogical it would be if damage always had to be borne by another person and never by the person basically closest to the damage, who owns the damaged interest and who is best placed to protect it against injury – especially when it can be taken as self-evident that the owner of the interest has exclusive enjoyment of the full advantages of this interest.

1 / 3 Hence, there must be particular reasons that appear to justify allowing the victim to pass the damage on to another person. In this context, it must firstly be considered that each measure to protect the sphere of a particular individual – in particular their subjective rights 7 – leads to a restriction of the liberty of action of all other persons, who must respect these protected interests as they have duties of care in this regard and they will be subject to additional duties to compensate should damage occur 8. Therefore, comprehensive consideration of the opposing interests of the individuals involved is necessary, whereby regard must also be had to the interests of the public.

The law of damages thus appropriately provides – to put it very generally and vaguely – for the granting of a claim for compensation against another person and hence for a corresponding shifting of the damage only when such person is » more closely associated « with the damage than the victim. Whether this is the case depends on various criteria: it is necessary that the person obliged to compensate caused the damage, or at least that it was caused within their sphere of influence ( ie persons ( eg employees, helpers ) and property ( eg dangerous things, animals ) for whom or for which the defendant is responsible because they serve the defendant’s interests and are under his influence ), and therefore that there is a connection between such person and the loss that was incurred. However, this alone is not sufficient, special grounds for imputing the damage ( ie establishing liability ) are necessary. There are several such grounds for liability, which base

5On this tendency cf Holzer / Posch / Schilcher, Was kommt nach dem Sozialschaden ? DRdA 1978, 210; Grossfeld, Haftungsverschärfung, Haftungsbeschränkung, Versicherung, Umverteilung,

Coing-FS II ( 1982 ) 115. On the serious nature of this tendency see Zöllner, Zivilrechtswissenschaft und Zivilrecht im ausgehenden 20. Jahrhundert, AcP 188 ( 1988 ) 95 f with further references.

6On this also Grossfeld, Coing-FS II 112 f.

7That is, the powers granted by law to individual persons ( legal subjects ), eg property right, claim to perform a contract, right to avoid a contract.

8Cf Picker, Vertragliche und deliktische Schadenshaftung, JZ 1987, 1052; idem, Die Privatrechtsgesellschaft und ihr Privatrecht. Zur wachsenden Freiheitsbedrohung im Recht und durch Recht, in: Riesenhuber ( ed ), Privatrechtsgesellschaft ( 2007 ) 207 ff; Wilhelmi, Risikoschutz 12 ff.

dance with the ideas of justice it is based on, but it is at the same time also aimed at preventing any additional advantage going beyond this 13. Thus, coordination

9See on this Canaris, Die Gefährdungshaftung im Lichte der neueren Rechtsentwicklung, JBl 1995, 15 ff; Englard, The Philosophy of Tort Law ( 1993 ) 11 ff; Esser, Grundlagen und Entwicklung der Gefährdungshaftung ( 1941 ) 69 ff; Henkel, Einführung in die Rechtsphilosophie2 ( 1977 ) 410 f; Looschelders, Die Mitverantwortlichkeit des Geschädigten im Privatrecht ( 1999 ) 122 f. Oertel, Objektive Haftung in Europa ( 2010 ) 24 ff, 46, considers, however, that no superiority of either

objective liability or fault-based liability can be inferred from the concept of distributive justice.

10On this Canaris, JBl 1995, 16; Englard, The Philosophy of Tort Law 16, 54 f, 85 ff, 228.

11Cf Zimmermann, Obligations 904; Brüggemeier, Haftungsrecht 9 and 11.

12Oetker in MünchKomm, BGB II5 § 249 no 10.

13On this Jansen in HKK zum BGB II §§ 249 – 253, 255 no 18.

between and interlinking of the different systems is necessary in order to avoid an undesired enrichment of the victim 14. Moreover, it must also be taken into consideration that other legal remedies, which do not provide for reparation of damage, in fact result in similar compensation. For instance, the claim for unjust enrichment available to someone whose rights were infringed may correspond largely with his rights to compensation for damage. In this case, the rules on competing claims will prevent double satisfaction of the injured party.

1 / 7 Second, it would seem necessary in the face of the general tendency to promote the expansion of the damage absorption systems, to call the following to mind: it is certainly desirable from the point of view of the victim that his losses are covered as extensively as possible. However, it must be taken into consideration that even in the field of patrimony it is not always possible to render the damage » undone « by virtue of complete compensation, and in the wide field of personality rights violations it is not really possible at all to compensate the damage as such. Handicap caused by bodily injury, lengthy deprivation of liberty or pain and suffering cannot be » undone « and frequently neither can their continued future impact be hindered. The victim can merely be awarded money as ultimately inadequate compensation. This was all highlighted by V. Mataja 15 more than 100 years ago: » No legislature in the world can eliminate a loss once it has occurred, the law is powerless in the face of such a fait accompli. Thus, in respect of the risk of damage, the law can only pursue two goals: it can seek to ( 1 ) exert a deterrent effect as much as possible and ( 2 ) shift the damage which nonetheless occurs to those people as seem most suitable to bear the loss according to the requirements of justice and economic interests.«

Hence, in the light of all of these frequent calls for the expansion of tort and other compensation systems, it is important not to lose sight of the primary aim 16 of the legal system, ie prevention of damage. Naturally, the strengthening of tort protection also serves prevention ( more detail in no 3 / 4 ), because it creates an incentive to avoid causing damage and thus being burdened with compensation claims. But tort certainly does not have sufficient impact on its own in terms of prevention of damage and its real role only comes into play once the damage has occurred. Thus, energy should be focussed on pursuing the goal of prevention of damage and not primarily expended on discussion of the expansion of compensation remedies for injuries which have already occurred. Besides the available private law relief instruments, such as preventive and reparative injunctions ( Unterlassungsund

14See on this, eg Schaer, Grundzüge des Zusammenwirkens von Schadensausgleichssystemen ( 1984 ).

15V. Mataja, Das Recht des Schadensersatzes ( 1888 ) 19. On this pioneering work by Mataja see Englard, Victor Mataja’s Liability for Damages from an Economic Viewpoint: A Centennial to an Ignored Economic Analysis of Tort, 10 Int’l Rev L & Econ ( 1990 ) 173 ff.

16This is also emphasised for example by Brüggemeier, Haftungsrecht 9.

Beseitigungsansprüche­ ),17 an intensification of public law protective laws and measures, for example more effective traffic supervision, or crime prevention, should also be considered and the main goal of effective damage prevention should not be impeded, for example by data protection promoted to serve at its own altar.

Before the actual law of damages issues can be handled, part II will look at the 1 / 8 position of the law of damages within the overall legal system, as this is not only

of importance in respect of liability law’s function within the system but also in respect of the detailed establishment of grounds for liability, the limitation of liability and the proper arrangement of the claims of an injured party. First however, it is important to look at a few fundamental questions – above all those affecting the » raison d’être « of the law of damages, namely whether, eg, tort law would not be better replaced by insurance-based solutions.

II.  An insurance-based solution instead of liability law ?

17See Dobbs, Law of Remedies2 ( 1993 ) 164: » A preventive injunction attempts to prevent the loss of an entitlement in the future.« and » The reparative injunction requires the defendant to restore the plaintiff to a preexisting entitlement «. See also Black’s Law Dictionary.

18Von Hippel, Schadensausgleich bei Verkehrsunfällen, Haftungsersetzung durch Versicherungs­ schutz ( 1968 ).

19Barta, Medizinhaftung ( 1995 ); Dute, A Comparison of No-Fault Compensation Schemes, in: Dute / Faure / Koziol ( eds ), No-Fault Compensation in the Health Care Sector ( 2004 ) 444 ff; Radau, Ersetzung der Arzthaftung durch Versicherungsschutz ( 1993 ). Cf on the different approaches also Cascao, Prevention and Compensation of Treatment Injury: A Roadmap for Reform ( 2005 ).

20Brüggemeier, Haftungsrecht 635; Gitter, Schadensausgleich im Arbeitsunfallrecht ( 1969 ) 36 ff, 238 ff; Koziol, Haftpflichtrecht I3 no 1 / 20.

21Hellner, Entwicklungslinien im schwedischen Haftpflichtrecht, Sieg-FS ( 1976 ) 155; Mikkonen, Compensation in the Finnish Health Care Sector, in: Dute / Faure / Koziol, No-Fault Compensation 186 ff; J.W. Pichler, Rechtsentwicklungen zu einer verschuldensunabhängigen Entschädigung im Medizinbereich I ( 1994 ) 91 ff; Wendel, Compensation in the Swedish Health Care Sector, in: Dute / Faure / Koziol, No-Fault Compensation 367 ff.

22On this Rohde, Haftung und Kompensation bei Straßenverkehrsunfällen ( 2009 ); Skegg, Compen- sationintheNewZealandHealthCareSector,in:Dute / Faure / Koziol,No-FaultCompensation298 ff; Todd ( ed ), The Law of Torts in New Zealand5 ( 2009 ). See also K. Oliphant, Landmarks of No-Fault

A. Fundamental advantages and disadvantages

reasons why the damage occurred are not important, then the victim will even get compensated for damage caused by chance or indeed by his own carelessness. However, this would take away the incentive to avoid damage occurring within one’s own sphere as far as possible and consequently promote carelessness in one’s own affairs 24. The result would be more frequent cases of damage and thus increased costs for the insurer, which would certainly be felt in the premiums it sets. Hence, the costs of such damage would also have to be borne by all those who applied due care in the management of their own affairs, via said premiums or via contributions payable to the insurer out of general tax funds.

Of even greater concern is the fact that the same would apply for damage to third parties. There would be – apart from possible criminal law consequences – no incentive to avoid damage to such third parties 25. Tort law’s special role in damage prevention would probably be largely obsolete. This is a matter for concern as the legal system should strive towards preventing the occurrence of damage 26: compensation can – as has already been emphasised – only lead to a shifting of the

in the Common Law, in: W.H. van Boom / M. Faure ( eds ), Shifts in Compensation between Private and Public Systems ( 2007 ) no 50 ff.

23Koziol, Ersatz der Haftpflicht bei Verkehrsunfällen durch Unfallversicherung ? ZfRV 1970, 16; B.A. Koch / Koziol, Comparative Report and Conclusions, in: Dute / Faure / Koziol, No-Fault Compensation 436 ff.

24This was also pointed out by F. Bydlinski, System und Prinzipien 111; J. Hager in Staudinger, BGB1999 Vor §§ 823 ff no 9; G. Wagner, Comparative Report and Final Conclusions, in: G. Wagner, Tort Law 312, 338 ff, 348 ff.

25This was also argued by G. Wagner, Tort Law and Liability Insurance, in: Faure, Tort Law 384 ff; cf also Fiore, No-Fault Compensation Systems, in: Faure ( ed ), Tort Law 407, 411 f.

26Cf Adams, Ökonomische Analyse der Gefährdungsund Verschuldenshaftung ( 1985 ) 85, 285 f.