Экзамен зачет учебный год 2023 / Koziol_BasicQuestions_Germanic

this is obscured by talk of the necessity of a direct cause. Furthermore, the PETL mention the protective purpose in Art 3 : 201 lit e.

Some try to integrate the adequacy theory into the protective purpose theory 42. 7 / 16

the victim covered by the protective scope of the rule may be designated the direct victim 47. Secondly, the type of damage must also be covered by the purpose of the rule ( subject matter protective scope; gegenständlicher Schutzbereich ) 48; thirdly, the way the damage was incurred is relevant, because it is necessary that

42See on these attempts Koziol, Haftpflichtrecht I3 no 8 / 76; Spickhoff, Folgenzurechnung im Schadensersatzrecht: Gründe und Grenzen, in: E. Lorenz ( ed ), Karlsruher Forum 2007 ( 2008 ) 21 f.

43Thus, eg, Lange, Gutachten 43. Deutscher Juristentag I / 1 59.

44This is emphasised, eg, by Esser / Schmidt, Schuldrecht I / 28 § 33 III 1 b; Lange, Gutachten 43. DJT, 54; Hauss, Referat, Verhandlungen des 43. DJT II / C ( 1960 ) 30; OGH 2 Ob 17 / 94 in ZVR 1995 / 135.

45Thus, already Rümelin, Die Verwendung der Causalbegriffe im Strafund Civilrecht, AcP 90 ( 1900 ) 304 ff; cf on this R. Lang, Normzweck und Duty of Care ( 1983 ) 33 f, 47 f, 82 ff; Karollus, Schutzgesetzverletzung 339 f; Spickhoff in: E. Lorenz ( ed ), Karlsruher Forum 2007, 24 ff; G. Wagner in MünchKomm, BGB V5 § 823 no 286 ff; OGH 7 Ob 53 / 82 in SZ 56 / 80.

46Cf OGH 1 Ob 679 / 86 in SZ 60 / 2 = JBl 1987, 308. For public liability law see Rebhahn, Amtshaftung und Normzweck, JBl 1981, 512 with additional references.

47Cf Koziol, JBl 1971, 106; OGH 1 Ob 34 / 82 in SZ 55 / 190.

48Thus, also the OGH 2 Ob 361 / 66 in JBl 1968, 35; 7 Ob 53 / 82 in SZ 56 / 80.

the risk that manifested was also covered by the rule ( modal protective scope; modaler Schutzbereich ) 49.

7 / 19 The general limitation of liability for damage by the purpose of the rule, ie according to the aim and meaning of the provision imposing liability, arises – as has already been stated – very generally from the fact that it is recognised today that rules must be construed teleologically 50; accordingly, the relevant protective purpose of the rules under tort law must also be determined 51, and thus the general purposes of the law of torts also come into play 52. When it comes into question which consequences of damage are to be imputed to the liable party, therefore, it is always necessary to examine the motivation behind the rule imposing liability, to see which damage the purpose of the law targeted in imposing a duty to compensate 53.

7 / 20 It must also be stressed that the protective purpose of the rule does not create any rigid boundaries either: often, a small core area of damage, which is in any case covered by the protective scope as well as a large periphery that does not fall so clearly into the protective scope can be determined. Depending on the weight of the other criteria for liability, in particular the gravity of the fault, the damage must be imputed to a broader or narrower extent 54.

7 / 21 Very generally, when determining the protective scope the following must be taken into consideration: if due to an infringement against a protective rule or due to infringement of tortious or contractual duties of care, conduct is wrongful, then it seems more reasonable also to impute consequential damages to the damaging party, even though he would not be responsible for bringing them about separately. Hence, even in the tort area, damage to another person’s property triggers liability for the pure economic losses subsequently sustained, eg lost profit ( see above no 6 / 57 ). The fact that, eg, a far-reaching protection of pure economic interests is recognised in the field of consequential damage, although such would not be protected on their own, can be explained by the fact that the conduct of

49 Rümelin, AcP 90, 306. Likewise OGH in 1 Ob 54 / 87 in SZ 61 / 43; 1 Ob 22 / 92 in SZ 66 / 77.

50Larenz / Canaris, Methodenlehre der Rechtswissenschaft3 ( 1995 ) 153 ff; F. Bydlinski, Methodenlehre2 436 ff. OGH eg 2 Ob 75 / 94 in SZ 67 / 198 = JBl 1995, 260. See further on determination of protective purpose F. Bydlinski, Schadensverursachung 63 f; Karollus, Schutzgesetzverletzung 347 ff, in particular 354 ff on the relationship between subjective-historical and objective teleological interpretation.

51Schmiedel, Deliktsobligationen nach deutschem Kartellrecht ( 1974 ) 140 ff, and R. Lang, Norm­ zweck 49 f, emphasises that it only concerns the determination of the protective purpose and thus that only one aspect of the task is looked at, construing rules according to their purposes.

52See R. Lang, Normzweck 113 ff.

53On the methodology of determining the protective purpose, see in detail Schmiedel, Deliktsobligationen 138 ff; cf further Burgstaller, Das Fahrlässigkeitsdelikt im Strafrecht ( 1974 ) 98 f; Welser, Der OGH und der Rechtswidrigkeitszusammenhang, ÖJZ 1975, 43 ff.

54See Wilburg, Elemente 245. Cf also OGH 2 Ob 575 / 91 in SZ 65 / 8.

the perpetrator is in any case already wrongful due to the infringement of other goods when it comes to consequential damage and the protection of the economic interests does not have to be achieved by first legislating for additional behavioural duties that would lead to further, considerable limitation of the freedom of movement 55.

B. The special problem of lawful alternative conduct

In the case of lawful alternative conduct 56, the issue is whether a perpetrator who 7 / 22 has acted wrongfully is liable for the damage caused even if he would have caused

the same harm otherwise by lawful conduct 57. A well-known example is the case 58 in which a car driver overtakes a cyclist leaving too little space on the side and crashes into him, but the same damage would have occurred had he allowed enough space as the cyclist was drunk and did not keep to his side, instead lurching out far to the middle. Very often debate turns on situations when a doctor operates ( without medical malpractice ) on a patient without adequately informing him of the risks, but disadvantageous consequences ensue and the doctor defends himself against the patient’s compensation claim by saying the patient would have consented in any case to the procedure had he been properly informed and the same negative results would have ensued 59. A case where a trade union started a strike without observing the stipulated waiting period of five days intended for negotiations attracted a great deal of attention; their defence against the compensation claims was that the negotiations would certainly have failed 60. Another controversial

55On this argument cf already Taupitz, Haftung für Energieleiterstörungen durch Dritte ( 1981 ) 136, 140 ff; Karollus, Neues zur Konkursverschleppungshaftung und zur Geschäftsführerhaftung aus culpa in contrahendo, ÖBA 1995, 12 FN 48.

56P. Bydlinski, Schadensersatzrechtliche Überlegungen anlässlich eines Verkehrsunfalls, ZVR 1984, 194 f; von Caemmerer, Überholende Kausalität 30 ff; Gotzler, Rechtmäßiges Alternativverhalten im haftungsbegründenden Zurechnungszusammenhang ( 1977 ); Grechenig / Stremitzer, Der Einwand rechtmäßigen Alternativverhaltens – Rechtsvergleich, ökonomische Analyse und Implikationen für die Proportionalhaftung, RabelsZ 73 ( 2009 ) 336 ff; Hanau, Die Kausalität der Pflichtwidrigkeit ( 1971 ); Karollus, Schutzgesetzverletzung 391 ff; Keuk, Vermögensschaden und Interesse ( 1972 ) 59 ff; Kleewein, Hypothetische Kausalität und Schadensberechnung ( 1993 ) 177 ff; Koziol, Rechtmäßiges Alternativverhalten – Auflockerung starrer Lösungsansätze, Deutsch-FS ( 1999 ) 179; Lange / Schiemann, Schadensersatz3 § 4 XII 1 ff; Münzberg, Verhalten und Erfolg 128 ff; Ulsenheimer, Das Verhältnis zwischen Pflichtwidrigkeit und Erfolg bei den Fahrlässigkeitsdelikten ( 1965 ); Welser, ÖJZ 1975, 43 ff.

57The simple possibility of bringing the damage about lawfully is by no means exculpatory; it is necessary that the same harm would otherwise in fact have been brought about by lawful behaviour: BGH in NJW 1993, 520; Oetker in MünchKomm, BGB II5 § 249 no 215.

58BGH in BGHSt 11, 1 = JZ 1958, 280.

59See on this Giesen, Arzthaftungsrecht4 ( 1995 ) 199 ff, 411 ff.

60See the decision of the German Federal Labour Court ( Bundesarbeitsgericht ) BAGE 6, 321.

case was when a gendarmerie officer arrested a suspect without an arrest warrant and in the proceedings for state liability the state’s defence was that the competent judge would in any case have ordered the arrest 61.

7 / 23 Above ( no 5 / 122 f ) it has already been mentioned that, at first glance, cases of lawful alternative behaviour seem to belong to the problem group of cumulative or hypothetical causation 62, but that there are differences 63: in cases of supervening causation the issue is that two events, both of which really took place and were thus specifically dangerous, were potentially causal for the damage. The issue when it comes to lawful alternative behaviour is, however, that only one event really took place and this really brought about the damage; the second event never took place, it is merely hypothesised and has thus not in fact posed any specific risk.

7 / 24 This is why in cases of lawful alternative conduct the perpetrator can in principle only be considered liable for causing the damage if his conduct consists in actions ( see above no 5 / 122 ). In the case of omissions, on the other hand, his liability would have to be rejected for lack of causation if the same harm would also have arisen had he taken action in accordance with his duties 64: an omission is only causal if taking specific action would have prevented the occurrence of the damage and this action would have been possible 65. Liability – at least partial – of the omitter can thus only come into question if the cases of lawful alternative behaviour are seen as a subgroup of potential causation and decided according to the rules of supervening causation ( see above no 5 / 110 ff ).

Insofar as in cases of lawful alternative behaviour the actual actions taken were a conditio sine qua non for the damage, then there is no question of causation at issue but instead a different kind of liability problem 66: the widespread view is that this is a question regarding the connection between the wrongfulness and the ensuing result 67. The question arises as to whether pursuant to the purpose of the behavioural rule the perpetrator who has acted wrongfully should be liable for the harm that would also have been brought about by lawful behaviour.

61OGH in 1 Ob 35 / 80 in SZ 54 / 108 = JBl 1982, 259; 1 Ob 30 / 86 in SZ 59 / 141.

62In favour, eg, Oetker in MünchKomm, BGB II5 § 249 no 211 f.

63Cf Deutsch, Haftungsrecht2 no 186; Kleewein, Hypothetische Kausalität 177 f; Mayrhofer, Schuld­ recht I3 281.

64Burgstaller, Das Fahrlässigkeitsdelikt im Strafrecht ( 1974 ) 131 f; Karollus, Schutzgesetzverletzung 392 f; Mayrhofer, Schuldrecht I3 281; Welser, Der OGH und der Rechtswidrigkeitszusammenhang, ÖJZ 1975, 44; OGH eg 1 Ob 785 / 83 in SZ 56 / 181 = JBl 1984, 554; 1 Ob 520 / 93 in JBl 1994, 338 = ZVR 1994 / 38; 7 Ob 238 / 04d in JBl 2009, 247.

65Cf on this Koziol, Wegdenken und Hinzudenken bei der Kausalitätsprüfung, RdW 2007, 12.

66See on this also Burgstaller, Fahrlässigkeitsdelikt 132. Das Problem verkennend Gotzler, Alternativverhalten 104 ff.

67Likewise Deutsch, Haftungsrecht2 no 188; Gotzler, Rechtmäßiges Alternativverhalten im haftungsbegründenden Zurechnungszusammenhang ( 1977 ) 139 ff; Welser, ÖJZ 1975, 44. Burgstaller, Fahrlässigkeitsdelikt 78 f, 132, on the other hand, takes the position there is a separate liability problem.

risk of occurrence of the result as opposed to the hypothesised lawful alternative behaviour.

68Cf von Caemmerer, Überholende Kausalität 31 f; Esser / Schmidt, Schuldrecht I / 28 § 33 III 2 a; Gotzler, Alternativverhalten 89 ff; Münzberg, Verhalten und Erfolg 137; OGH 2 Ob 52 / 56 in ZVR 1956 / 132; 8 Ob 38 / 78 in ZVR 1978 / 314; 1 Ob 8 / 78 in SZ 51 / 126 = JBl 1979, 487; 1 Ob 22 / 91 in JBl 1992, 316; 2 Ob 21 / 92 in ZVR 1993 / 122.

69W. Berger, Die zivilrechtlichen Folgen von Grundrechtsverletzungen in Österreich, EuGRZ 1983, 241; von Caemmerer, Überholende Kausalität 31 f; Deutsch, Haftungsrecht2 no 193; Kleewein, Hypothetische Kausalität und Schadensberechnung ( 1993 ) 181 ff; Lange / Schiemann, Schadensersatz3 § 4 XII 4 ff; Mayrhofer, Schuldrecht I3 281; Mertens in Soergel, BGB III12 Vor § 249 no 164 f; Schiemann in Staudinger BGB2005 § 249 no 104 ff; OGH 1 Ob 35 / 80 in SZ 54 / 108; 1 Ob 30 / 86 in SZ 59 / 141 = JBl 1987, 244. Dagegen P. Bydlinski, Schadensersatzrechtliche Überlegungen anlässlich eines Verkehrsunfalls, ZVR 1984, 196; Gotzler, Alternativverhalten 94 f, 121 ff; Grunsky, AcP 178 ( 1978 ) 333 f; Harrer in Schwimann, ABGB VI3 §§ 1301, 1302 f no 54; Keuk, Vermögensschaden und Interesse ( 1972 ) 68 f.

70Schutzgesetzverletzung 399 ff. Following this line OGH 2 Ob 594 / 95 in RdW 1996, 114.

71See above all Roxin, Pflichtwidrigkeit und Erfolg bei fahrlässigen Delikten, ZStW 74 ( 1962 ) 430 ff; Burgstaller, Fahrlässigkeitsdelikt 135 ff.

However, Hanau 72 has already rejected the adoption of this theory in civil law on the basis that in the present context the compensation of damage is at issue and not, as in criminal law, a penalty for aggravating a risk. This objection is persuasive despite attempts to counter it by Karollus: in criminal law, which is dominated by the penal notion, it may well be appropriate to attach the penalty to the simple engagement in dangerous conduct and not to the occurrence of any particular result. In the law of tort, on the other hand, a duty to compensate can only be imposed if a disadvantageous result, that has actually occurred, can be imputed to the perpetrator. The dangerous, risk-aggravating conduct in itself, ie in the absence of any damage occurring, cannot trigger a duty to compensate as a legal consequence; for in the law of tort – even in Karollus’ 73 view – the penal and deterrence notions usually do not suffice to justify liability.

7 / 28 The decisive and correct core of Karollus’ view, and which is clearly his main crux, consists in any case in the material securing of the result, that the party who has acted in a manner that poses a specific danger, ie increases a risk, and is wrongful, must bear the entire risk of clarifying this, ie the burden of proof: this party must prove that the increase of risk had no effect in the case at issue. The division of the burden of proof at the expense of the party who acted wrongfully can certainly be justified with reference to the penal and deterrence notions: behaviour that is dangerous and also presents difficulties in clarifying the issues should indeed be prevented; the risk that it cannot be clarified is better borne by the party who generated it by acting wrongfully than by the victim.

7 / 29 Thus, even though the basic approach of the prevailing view must still be followed, considerable corrections and clarifications must be made.

According to prevailing opinion, the proven defence that the damage would otherwise have been brought about by lawful alternative behaviour exempts – as already mentioned – the damaging party completely from liability. This outcome corresponds to the majority opinion on the problem of supervening causation when a liability-triggering event competes with a coincidence affecting the victim ( see above no 5 / 115 ). This correspondence is appropriate insofar as the two problem areas are – as explained – not identical but do have value judgement parallels: in both cases the issue is that wrongful and culpable behaviour has really brought about harm, which would otherwise have been caused by an event not giving rise to liability. The difference is merely that in the case of supervening cause the second event actually does happen whereas in cases of lawful alternative behaviour

72Die Kausalität der Pflichtwidrigkeit ( 1971 ) 130; cf also Deutsch, Begrenzung der Haftung aus abstrakter Gefährdung wegen fehlender adäquater Kausalität ? JZ 1966, 557 f.

73Schutzgesetzverletzung 400. The fact that mere increase of a risk that damage will occur is not enough to provide a basis for a duty to compensate is also shown by the fact that – even according to Karollus – liability must be rejected if harm occurred but it is proven that this would have arisen in any case even in the absence of the risk-increasing behaviour at issue.

it remains hypothetical. Both cases therefore concern the value judgement problem of whether the real causer should be exculpated by a coincidence that did not have any real impact. The question of whether according to the purpose of the behavioural rule the damaging party who has acted wrongfully should also be held liable for damage caused or potentially caused by him, which would otherwise anyway have occurred due to an event not triggering liability arises in both the cases of supervening causation and lawful alternative behaviour alike and must be decided alike as there are no relevant differences between the two areas to justify otherwise 74.

However, according to the view advocated here, this means that the solution 7 / 30 in the case of lawful alternative behaviour also depends on whether there is subjective or objective – developed from the notion of continuation of a right – assess-

ment. In the latter case it depends on the market value at the time the damage occurred; later – hypothetical – events will no longer be taken into account. Nonetheless, it must be taken into consideration that the value of a thing can already be reduced by the fact that a third party is entitled to eliminate, destroy or change it in a lawful manner.

If in the case of subjective assessment of damage in the case of hypothetical causation one assumes with F. Bydlinski that damage must be apportioned if an event triggering liability competes as a cause with coincidence analogously to § 1304 ABGB, § 254 BGB ( see above no 5 / 87 ) 75, ie the damaging party is by no means fully exempt from liability, then this must also apply correspondingly for the area of lawful alternative behaviour: the merely hypothesised other behaviour cannot effect any more extensive exculpation of the perpetrator than a second, real event. The damage apportionment also seems appropriate here because the actual event triggering liability is imputable to the damaging party but the hypothesised behaviour which would not trigger liability is imputable to the victim’s risk area. It must be borne in mind that the damage apportionment is adjusted to the disadvantage of the victim if, in the case of the hypothesised damage due to lawful alternative behaviour, fault were also to be found against the victim. For instance, if the cyclist veered so much due to culpable drunkenness that the car driver would also have hit him had he observed the regulations on space to be allowed when taking over, then the cyclist must not only bear the coincidence arising in his own sphere but is also liable due to negligent behaviour ( see above no 5 / 88 ). The apportionment of damage would then be in a ratio of about 3 to 1, at his cost. On the other hand, if an unexpected gust of wind blew him in front of a car engaged in taking over in the proper manner, it would be appropriate to apportion the damage half half.

74See Koziol, Rechtmäßiges Alternativverhalten, Deutsch-FS 180 ff.

75In favour of apportionment of damage also Grechenig / Stremitzer, RabelsZ 73 ( 2009 ) 362 ff.

7 / 31 From the standpoint advocated here, the question at issue as to whether the lawful alternative behaviour does not exculpate the perpetrator at all if he failed to comply with stipulated procedural rules, is at least defused because the perpetrator must bear at least part of the damage, although the ratio of the damage apportionment would also depend on the weight of the procedural rule. This makes it all the more easy to accommodate the criticism 76 of the differentiation between rules that primarily seek to avoid the occurrence of damage and those that are aimed above all at compliance with a certain procedure. Specifically, it is very reasonably doubted whether it is possible clearly to distinguish between behavioural rules aimed at preventing a harmful result and behavioural rules that provide for a certain procedure: on the one hand, all rules are aimed at forbidding certain behaviour; on the other hand, every behavioural rule also serves to prevent damage. A clear division of the rules, such as could justify different legal consequences, is thus practically impossible; hence, a sudden switch from full liability to full exemption from liability would be anything but persuasive. It is nonetheless correct that differing significance can be accorded to the legal system’s interest in compliance with a certain conduct and that this is highest when a stringently regulated procedure is intended specially to protect high-ranking goods.

7 / 32 It is in line with this ultimately, when Karollus 77 argues for recognising the exclusion of liability exemption in rare exceptional cases: if a result without compliance with the legally stipulated procedure should urgently be prevented, for example because of the ranking of the good at risk, for instance deprivation of liberty without court authorisation, then an exemption from liability based on the defence of lawful alternative behaviour could be precluded. However, this does not mean the defence of lawful alternative behaviour is fully excluded unless special procedures serving the protection of the victim, such as a court detention procedure, have not been complied with at all or fundamental procedural principles have been violated and consequently there has been a grave perversion of justice.

The simple infringement of competence rules or errors of form, on the other hand, cannot preclude the defence of lawful alternative behaviour 78. Therefore, for instance, the defence would not be completely refused if the trade union began the strike without waiting for the expiry of the five-day deadline intended to provide time for all other possibilities to be exhausted 79.

76See in particular P. Bydlinski, Schadensersatzrechtliche Überlegungen anlässlich eines Verkehrsunfalls, ZVR 1984, 196; Karollus, Schutzgesetzverletzung 405 f.

77Schutzgesetzverletzung 405 ff.

78Thus, also W. Berger, Die zivilrechtlichen Folgen von Grundrechtsverletzungen in Österreich, EuGRZ 1983, 241; OGH 1 Ob 42 / 90 in SZ 64 / 23 = JBl 1991, 647.

79Thus, Karollus, Schutzgesetzverletzung 407. Anders die Entscheidung des deutschen Bundesarbeitsgerichtes BAGE 6, 321. On this Bötticher, Zur Ausrichtung der Sanktion nach dem Schutz­ zweck der verletzten Privatrechtsnorm, AcP 158 ( 1959 / 60 ) 387 ff; von Caemmerer, Überholende

Kausalität 33 f; Larenz, Präventionsprinzip und Ausgleichsprinzip im Schadensersatzrecht, NJW

1959, 865; Niederländer, Hypothetische Schadensereignisse, JZ 1959, 617.

80Schramm, Der Schutzbereich der Norm im Arzthaftungsrecht ( 1992 ) 246 ff with additional references; OGH 1 Ob 42 / 90 in SZ 55 / 114 = JBl 1983, 373 ( Holzer ); 1 Ob 651 / 90 in SZ 63 / 152 = JBl 1991, 455; 5 Ob 1573 / 91 in JBl 1992, 391; 1 Ob 532 / 94 in SZ 67 / 9 = JBl 1995, 245 = RdM 1994, 121 ( Kopetzki ); 4 Ob 509 / 95 in JBl 1995, 453 ( J.W. Steiner ) = RdM 1995, 91 ( Kopetzki ); 1 Ob 254 / 99 f in SZ 72 / 183 = JBl 2000, 657 ( Jabornegg ).

81Von Caemmerer, Überholende Kausalität 34 ff; cf also Deutsch, Schutzbereich und Tatbestand des unerlaubten Heileingriffs im Zivilrecht, NJW 1965, 1985; Giesen, Arzthaftungsrecht4 199 ff, 411 ff.

82Also the BGH in BGHZ 106, 391; NJW 1991, 2346; as well as Medicus in Staudinger, BGB1980 § 249 no 114 hence want to exclude the defence only in the case of » significant infringement of doctors’ duties «; Mertens in Soergel, BGB III12 Vor § 249 no 166, only when consent is completely lacking.

lawful alternative behaviour is largely inapplicable if the perpetrator deliberately decided to engage in the prohibited behaviour although there was a lawful option available to him. When wrongful behaviour is chosen deliberately, the notion of deterrence has greater weight so that full liability of the damaging party is justified even when the violations of the behavioural rules are not so weighty. This is true not only when procedural rules are deliberately disobeyed but also when damage is intentionally inflicted by non-compliance with other behavioural regulations. Therefore, eg, those competitors who deliberately inflict harm by unfair competition practices must pay compensation without being able to invoke as a defence that the same damage would have been inflicted by fair methods of competition.

V.  Intervening wilful act by a third party

7 / 35 Above all Larenz 83 has emphasised that the objective liability of consequences of damage can also be precluded due to grounds other than lack of adequacy or lack of protective purpose of the rule. He highlighted in particular those cases in which the consequences of damage are based on an independent decision, not provoked by the process providing a basis for liability, on the part of the victim himself or a third party. The victim or such third party, he explains, is solely responsible for the further damage brought about by their own independent actions. The liability of the further damage to the first damaging party should no longer be permissible 84 from a value judgement perspective because, on the one hand the secondary conduct of the victim or a third party was not provoked by his behaviour

83Larenz, Lehrbuch des Schuldrechts I14 ( 1987 ) § 27 III b 4; idem, Zum heutigen Stand der Lehre von der objektiven Zurechnung im Schadensersatzrecht, Honig-FS ( 1970 ) 79. On the matter, accordingly, Deutsch, Regreßverbot und Unterbrechung des Haftungszusammenhanges, JZ 1972, 551, who, however, does not seem happy about a » break in the causal line «; cf also Friese, Haftungsbegrenzung für Folgeschäden aus unerlaubter Handlung ( 1968 ); Oetker in MünchKomm, BGB II5 § 249 no 151 ff; Schiemann in Staudinger, BGB2005 § 249 no 58 ff. Kritisch Niebaum, Die deliktische Haftung für fremde Willensbetätigungen ( 1977 ) 57 ff; Zimmermann, Herausforderungsformel und Haftung für fremde Willensbetätigung nach § 823 I BGB, JZ 1980, 10. On the parallel criminal law liability problem see Burgstaller, Erfolgszurechnung bei nachträglichem Fehlverhalten eines Dritten oder des Verletzten selbst, Jeschek-FS ( 1985 ) 357.

84A rather secondary question is whether the issue at stake here regarding exclusion of liability can be allocated to the field of protective purpose. It at least concerns one group dominated by a uniform idea that accordingly can be treated separately. Cf also Deutsch, JZ 1972, 553. In 2 Ob 227 / 21 in SZ 44 / 188 the OGH decided a case of this type by relying on the protective purpose of the rules.