Экзамен зачет учебный год 2023 / Koziol_BasicQuestions_Germanic

with intention, brought about certain damage 87; but other criteria can lead to the opposite decision. If the custodian of a deposited thing does not keep it well, then he will by no means be freed from liability towards the depositor if a third party negligently damages the thing or deliberately takes it away 88. The person who neglects his duty to supervise a child remains liable towards the child if the child is then intentionally injured by a third party. This is a necessary consequence in both cases as the breached duties have precisely the purpose of preventing such damage. The harm suffered thus lies in the core area of the protective purpose of the behavioural rule violated by the first perpetrator.

If someone is injured by the first perpetrator and then the consequences of the injury are aggravated by a medical error during treatment, then the damaging party who brought about this risk continues to be liable alongside the doctor for the consequences 89. On the other hand, if the doctor intentionally treats the patient incorrectly, the first perpetrator is no longer accountable for the consequences 90: firstly, the grounds for liability to the doctor are the strongest conceivable in respect of this part of the damage, secondly, the grounds for liability to the first perpetrator are very weak: his fault related only to the first injury and, moreover, only a very small degree of adequacy still applies.

85Cf Friese, Haftungsbegrenzung 247 f. Thus, in the so-called grass verge cases ( » Grünstreifenfällen « ) BGH in BGHZ 58; 162, 167 = NJW 1972; 904; on this Oetker in MünchKomm, BGB II5 § 249 no 153 f with additional references.

86On this Koziol, Haftpflichtrecht I3 no 4 / 52 ff.

87This has long been recognised in the field of contributory negligence: if the damaging party acted intentionally then the slight negligence of the victim is no longer relevant and such is entitled to compensation for the whole damage. See above no 6 / 211.

88See Deutsch, JZ 1972, 553.

89More reticent Zimmermann, JZ 1980, 15. Burgstaller, Das Fahrlässigkeitsdelikt im Strafrecht ( 1974 ) 119, considers the consequences should not be imputed against the first perpetrator if there is gross negligence by the doctor.

90Thus, also Burgstaller, Fahrlässigkeitsdelikt 117.

ever, this does not apply to any and all damage. A pursuit is only considered to be in the public interest or the victim’s interest provided that on the balance of interests the goods endangered by the pursuit are not higher ranked than those protected by the pursuit. If the pursuit is no longer justified because significantly higher-ranked interests are endangered than those being defended, then the pursuers are also guilty of deficient behaviour. If they continue with the pursuit despite being aware that their endangerment of themselves is no longer justified, then only the voluntary decision of the pursuers is material in respect of this increase of risk. The deliberate, clearly no longer reasonable, self-endangerment

91Haftungsbegrenzung für Folgeschäden aus unerlaubter Handlung ( 1968 ) 245 f.

92On this Friese, Haftungsbegrenzung 245 f with additional references; similar also BGH in NJW 1997, 865 ( theft of transport cases from a money transport vehicle damaged in a road traffic accident ) on this also Schiemann in Staudinger, BGB2005 § 249 no 60 ff.

93Koziol, Die Schadensminderungspflicht, JBl 1972, 225.

94OGH 2 Ob 314 / 02v in ZVR 2004 / 37.

95Larenz, Lehrbuch des Schuldrechts I14 ( 1987 ) § 29 I b; Koziol, Haftpflichtrecht I3 no 4 / 55 and no 8 / 42; Oetker in MünchKomm, BGB II5 § 249 no 164 ff, in each case with further references.

can only be imputed to the pursuer and no longer to the perpetrator 96. If the pursuit was still justified, then the liability of the perpetrator can also be reduced after all under § 1304 ABGB, § 254 BGB; the pursuers injured during the pursuit can in particular be held contributorily at fault if they should have seen that the interests endangered by the pursuit outweighed those defended by the pursuit.

When it comes to rescue operations, such considerations must also be made 7 / 41 and, therefore, not all consequences can always be imputed to the first perpetra-

tor 97.

Furthermore, the perpetrator is also liable if the person disabled due to the injury decided to undertake a rash course of action and is injured anew as a result; however, the duty to compensate may be mitigated due to contributory fault 98.

VI.  Limits of liability

While in Switzerland, as in so many legal systems 99, there is no limit on the 7 / 42 amounts awarded in the context of strict liability based on dangerousness 100, Ger-

man and Austrian law very often provide for limits of liability in this field 101.

The explanatory comments on the EKHG 102 show that the limits are conceived as a balance to the stringent liability of the faultless operator or keeper. Mostly, the crux is presented as being that the risk faced by the keeper of a dangerous thing must remain economically reasonable, it also being contended that this is only possible if the third-party liability insurance premiums can be kept bearable by means of fixed maximum limits 103.

96Thus, in conclusion also Deutsch, Haftungsrecht2 no 173; idem, Regreßverbot und Unterbrech­ ung des Haftungszusammenhanges, JZ 1967, 643; Larenz, Schuldrecht I14 § 27 III b 5. BGH in BGHZ 57, 25; BGHZ 63, 189.

97On this Larenz, Schuldrecht I14 § 27 III b 5; Lüer, Die Begrenzung der Haftung bei fahrlässig begangenen unerlaubten Handlungen ( 1969 ) 148; Niebaum, Die deliktische Haftung für Willensbetätigungen ( 1977 ) 112; Welser, Der OGH und der Rechtswidrigkeitszusammenhang, ÖJZ 1975, 6; OGH 2 Ob 15 / 05b in SZ 2005 / 40.

98OGH 2 Ob 139 / 88 in ZVR 1989 / 130.

99B.A. Koch / Koziol, Comparative Conclusions, in: B.A. Koch / Koziol, Unification: Strict Liability 428 f.

100See Oftinger / Stark, Haftpflichtrecht I5 414 f.

101See Will, Quellen erhöhter Gefahr ( 1980 ) 306 f; Taschner, Begrenzung der Gefährdungshaftung durch Haftungshöchstsummen, in: Schlechtriem / Leser ( eds ), Zum Deutschen und Internationalen Schuldrecht ( 1983 ) 77 f; Koziol, Haftpflichtrecht I3 no 6 / 24.

102470 BlgNR 8. GP zu den §§ 12 und 13.

103Esser, Grundlagen und Entwicklung der Gefährdungshaftung ( 1941 ) 107; Rodopoulos, Kritische Studie der Reflexwirkungen der Haftpflichtversicherung auf die Haftung ( 1981 ) 28, 33 f.

rightly objects that in other countries, eg Sweden, Switzerland and also in the Romance language countries, no such limitation is known and the risk is still insurable. It may be added to this that Austrian law also provides for instances of non-fault-based liability based on dangerousness without any limits on liability ( ForstG, BergG, PHG ), and even the EKHG – in a strange departure from its basic line – does not limit liability for damage to real property and this has clearly not led to any insurmountable problems with insurability. Furthermore, Will 109 in particular points out that in any case insurance has to cover fault-based liability which is always unlimited. Moreover, the contention that maximum amounts of liability are necessary for insurability for insurance-mathematical or other reasons 110 cannot constitute an effective argument against the elimination of limits on liability: the sums insured can be determined – as in the field of unlimited fault-based liability – so that potential maximum damage is covered so far as

104 Thus, also Will, Quellen 309 f.

105 On the concerns from the perspective of economic analysis of law see Faure, Economic Analysis, in: B.A. Koch / Koziol, Unification: Strict Liability 387 f.

106 Will, Quellen 317; B.A. Koch, Die Sachhaftung ( 1992 ) 159 f.

107 Thus, also von Caemmerer, Das Verschuldensprinzip in rechtsvergleichendem Licht, RabelsZ 42 ( 1978 ) 14 f; Will, Quellen 322 ff; Kötz, Gefährdungshaftung, in Gutachten und Vorschläge zur Überarbeitung des Schuldrechts II ( 1981 ) 1830 with additional references; F. Bydlinski, System und Prinzipien 204.

108 Reform der Gefährdungshaftung ( 1971 ) 23 f. Cf also Larenz / Canaris, Schuldrecht II / 213 § II § 84 I 1 c. 109 Quellen 310 ff; likewise Kötz, Gutachten 1828; Leser, Zu den Instrumenten des Rechtsgüterschutzes im Deliktsund Gefährdungshaftungsrecht, AcP 183 ( 1983 ) 599; Taschner, in: Schlech-

triem / Leser ( eds ), Zum Deutschen und Internationalen Schuldrecht 84.

110 Bruck / Möller / Johannsen, Kommentar zum Versicherungsvertragsgesetz8 IV ( 1970 ) 305; Späte, Haftpflichtversicherung ( 1993 ) Vor no 50.

the rules of experience reach. The Swiss example shows also that even unlimited insurance is possible 111. Due to the decreasing risk of major league damage, this would result in only a relatively minor increase in premium costs 112.

293

Chapter 8

The compensation of the damage

I.  Extent of compensation

A. Comprehensive compensation as a basic principle ?

fault in that he must only compensate a part of the overall damage caused 3. Thus, in a per se appropriate manner, the balance between the gravity of the liability and the legal consequence is restored 4. However, critics contend that by solely considering the degree of fault, the law considers the overall weight of all grounds for liability inadequately and in too inflexible a fashion 5. Moreover, it is also pointed out that from the victim’s perspective the compensation of lost profit may be more important than that of the actual loss, meaning that the gradation of the legal consequences is not appropriate. The Austrian Draft therefore does not include such a rule.

8 / 3 Besides the current, specifically Austrian limitation of the duty to compensate there are also other significant restrictions, both in Austrian and German law and also in other legal systems. It is widely recognised that not all harm caused by the damaging party is recoverable; liability of such is limited by application of the theories of adequacy and the protective purpose of the infringed rule; these limitations should be applied flexibly in accordance with the gravity of the grounds for liability ( see above no 7 / 7 ff and 15 ff ). Furthermore, in Germany and Austria, in the field of strict liability, caps on liability are presently still common; in Switzerland, on the other hand, such limitations are unknown, as in other legal systems ( see above no 7 / 42 ff ). Product liability law provides for a threshold 6. Lastly, a de minimis threshold is applied when it comes to compensating non-pecuniary damage ( see above no 6 / 28 ).

8 / 4 Finally, reference must be had to the rules on the contributory responsibility of the victim, which leads to merely partial compensation when there are also grounds for liability on the side of the victim ( see above no 6 / 204 ff ). This constitutes a deviation from the all-or-nothing principle. According to a view widely recognised in Austria but also supported elsewhere, this is reflected analogously in cases of alternative causation if the potentially causal, liability-triggering event competes as the cause with a potentially causal event imputable to the victim’s sphere of risk ( no 5 / 86 ff ).

3This is not adequately taken into account by G. Wagner, Neue Perspektiven im Schadensersatzrecht – Kommerzialisierung, Strafschadensersatz, Kollektivschaden, Gutachten A zum 66. Deutschen Juristentag ( 2006 ) 6, when he cites this gradation of compensation according to the degree of fault as an example of punitive damages.

4See von Jhering, Das Schuldmoment im römischen Privatrecht ( 1867 ), printed in extended form in: von Jhering, Vermischte Schriften juristischen Inhalts ( 1879 ) 155 ff; Pfaff, Zur Lehre von Schadenersatz und Genugthuung nach österreichischem Recht, in: Pfaff / Randa / Strohal, Drei

Gutachten ( 1880 ) 89 ff; Wilburg, Elemente 249 f.

5Wilburg, Elemente 249 f; Koziol, Haftpflichtrecht I3 no 1 / 16; Karner in KBB, ABGB3 § 1293 no 3.

6See 85 / 374 / EEC Art 9 b: » For the purpose of Article 1, › damage ‹ means: damage to, or destruction of, any item of property other than the defective product itself, with a lower threshold of 500 ECU, provided that the item of property is of a type ordinarily intended for private use or consumption, and was used by the injured person mainly for his own private use or consumption.«

really build a closed system but nonetheless a consistent basic principle can be discerned and is capable of generalisation: the stronger the grounds for liability on the side of the damaging party, the more comprehensive the compensation, although the countervailing grounds on the side of the victim must also be taken into consideration. The idea that the weakness of grounds for liability may lead to a limitation of liability was probably behind the original introduction of liability limits in the field of strict liability, as this area was at least formerly seen as a type of liability based on lesser grounds for liability.

Proportionality between liability grounds and the extent of the compensation has already been urged for by Jhering, followed later by Wilburg and now also by

7BGH in NJW 1994, 852; NJW 1996, 1532; Otte / Schwarze, Die Haftung des Arbeitnehmers3 ( 1998 ) no 25 ff and no 190; Sandmann, Die Haftung von Arbeitnehmern, Geschäftsführern und leitenden Angestellten ( 2001 ) 51 ff.

F. Bydlinski 8 but the legislature has not yet systematically followed up. This should be ascribed more weight in future.

8 / 9 As shown by comparative law, the criticism of the current Austrian solution and the Austrian Draft, the present-day view is that even in the case of slight negligence the victim is entitled to full compensation and not just recovery of his actual loss. Therefore, it may be noted as a basic value that the damaging party must compensate the victim’s entire interest in respect of every degree of fault and every equivalent liability, this however within the bounds of average adequacy and the clear protective purpose. In the case of serious fault, the adequacy and protective purpose limits must be set wider, in the case of intention such may lose all relevance. On the other hand, weakness of the grounds for liability weighing against the damaging party may lead to more stringent adequacy and protective purpose requirements and also make partial liability seem appropriate under consideration of financial circumstances or other circumstances that support having the victim bear risk.

B. The objective value as minimum compensation

8 / 10 It has already been explained above ( no 3 / 8 ff ) that the notion of continuation of a right as a special form of the notion of deterrence supports allowing the victim to seek the objective-abstract evaluation of his disadvantage as the minimum damage sustained. This is very predominantly recognised in Austrian law 9. Even in Germany, several important voices do endorse this approach 10. The prevailing view, however, clearly expresses distaste for objective-abstract assessment 11; nevertheless in substance this method is used, especially when it comes to compensating loss of market value 12.

8System und Prinzipien 225 ff with additional references.

9See Koziol, Haftpflichtrecht I3 no 2 / 76 with additional references.

10See eg, Larenz, Lehrbuch des Schuldrechts I14 ( 1987 ) § 29 I b; Hagen, Zur Naturalrestitution, in: Lange / Hagen, Wandlungen des Schadensersatzrechts ( 1987 ) 80; Stoll, Haftungsfolgen im bürgerlichen Recht ( 1993 ) 194 ff.

11Lange / Schiemann, Schadensersatz3 § 6 I with additional references.

12On this Koziol, Haftpflichtrecht I3 no 10 / 21 and 60 ff.