Экзамен зачет учебный год 2023 / Koziol_BasicQuestions_Germanic
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Chapter 9
Prescription of compensation claims
I. The basic principles of the law on prescription
A. The basic problem regarding the concept of prescription
While prescription primarily serves to protect alleged obligors against unfounded |
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suits, it also leads to unenforceability of existing claims 1. As F. Bydlinski 2 rightly |
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emphasises, the loss of an existing right simply due to the passing of time or at |
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least the fact that such is rendered unenforceable, represents a serious impair- |
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ment of the protection of well-founded rights, the principle of freedom and the |
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theory of justice: » Without his will in this respect, ie involuntarily, the entitled |
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person suffers the loss of his rights and the assets associated with such, without |
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it being possible to justify such loss in relation solely to the respective obligor or |
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person alleged to be liable: hence, in the absence of any counter-performance |
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on his part, such person unilaterally obtains an advantage without the will of |
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the person previously entitled and at the expense of this person. « Therefore, pre- |
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scription is also referred to as a type of dispossession 3; however, it must also be |
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observed that the dispossession ought to serve » the general best interest « ( § 365 |
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ABGB ), whereas prescription only benefits a specific obligor and does not serve |
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the public interest 4. |
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As F. Bydlinski further explains, the institution of prescription would be clas- |
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sified as a violation of legal ethics if seen purely from the perspective of the afore- |
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1 Spiro, Begrenzung privater Rechte I 10 ff.
2System und Prinzipien 167 f.
3Von Bar, Deliktsrecht II no 554; Mansel, Die Reform des Verjährungsrechts, in: Ernst / Zimmermann ( eds ), Zivilrechtswissenschaft und Schuldrechtsreform ( 2001 ) 348; Zimmermann, » … ut sit finis litium «, JZ 2000, 854; Zimmermann / Kleinschmidt, Prescription: General Framework and Special Problems Concerning Damages Claims, in: Koziol / B.C. Steininger, Yearbook 2007, 31 ( a German version appeared under the title » Verjährung: Grundgedanken und Besonderheiten
bei Ansprüchen auf Schadensersatz « in: Bucher-FS [ 2009 ] 861 ).
4Zimmermann, JZ 2000, 857.
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mentioned fundamental principles 5. Nonetheless, he also notes that legal history and comparative law, ie the experience of jurisprudence in its entirety, hardly substantiate anything more clearly than the indispensability and naturalness of the institution of prescription 6. This viewpoint can be supported by other fundamental legal principles, specifically the need for legal certainty in general 7 as well as practicability and economic effectivity 8.
9 / 3 As B.A. Koch 9 has rightly emphasised, however, it must in principle be the case that a claim once it arises can only become prescribed when other interests outweigh it. The decision as to when prescription should apply, as Zimmermann 10 highlights, hinges on a delicate balancing of countervailing interests. Besides the interests of the defendant, in particular in protection against increasing evidentiary difficulties, unexpected suits and in security as to what he disposes of, the interests of the general public in timely enforcement of rights, peace under law, legal certainty and ensuring that the courts are not overburdened are at issue, but above all of course, also the interests of the claimant in sufficient opportunity to enforce his rights 11.
The weight and interplay of these grounds play a role in particular when it comes to the different prerequisites for prescription of compensation claims. Above all, the victim’s knowledge of the existence of a claim against a certain liable party and thus the possibility to enforce such is of very decisive significance.
B. Protection against unfounded claims
9 / 4 The further back in the past the relevant facts lie, the more difficult it is to establish them reliably and thus also to determine the real legal situation. Because
5The prescription of absolute rights is heavily criticised by Peters / Zimmermann, Verjährungs-
fristen, in: Bundesminister der Justiz ( ed ), Gutachten und Vorschläge zur Überarbeitung des Schuldrechts I ( 1981 ) 186. In their view only secondary claims should be subject to prescription.
6Zimmermann, JZ 2000, 854, also emphasises that all developed legal systems impose time limitations on the enforcement of claims.
7Grothe in MünchKomm, BGB I / 15 Vor §§ 194 ff no 7; Piekenbrock, Befristung, Verjährung, Ver schweigung und Verwirkung ( 2006 ) 317 f.
8Cf also Peters / Zimmermann in: Bundesminister der Justiz, Gutachten, Schuldrecht I 187 ff; von
Bar denotes prescription in this sense as the » weakest defence morally speaking « ( Deliktsrecht II no 545 ). Keller, Haftpflicht im Privatrecht II2 ( 1998 ) 249, concludes that the ultimate aim of the legal system is not the enforcement of true rights but peace under the law.
9Verjährung im österreichischen Schadenersatzrecht de lege lata und de lege ferenda, in: Liber Amicorum Pierre Widmer ( 2003 ) 174.
10Zimmermann, JZ 2000, 857; idem, Comparative Foundations of a European Law of Set-Off and Prescription ( 2002 ) 76 ff.
11See on this recently Vollmaier, Verjährung und Verfall ( 2009 ) 50 ff with additional references.
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of these evidentiary difficulties, F. Bydlinski 12 concludes: » In the judgement of all developed legal systems, therefore, because of temporal considerations there must at some point be an end to the possibility of recourse back to the alleged and often also actually true legal situation «. The need to protect the defendant against unfounded claims is accordingly broadly regarded as an especially weighty argument 13; however, this protection may only be understood as an ancillary purpose, as otherwise the result would be unjustified protection of real obligors and not only the justified protection of persons not really under any obligation, he argues 14.
On the other hand, however, it seems an obvious objection that the evidentiary difficulties 15 would in any case be borne by the obligee, who in principle would have to prove the elements of the claim. Nevertheless, the evidentiary difficulties also have a substantial impact upon the position of the alleged obligor: he can often no longer prove or adequately substantiate his defences and objections against the alleged claims. Spiro 16 consequently summarises the situation as follows: » Thus, the first task of prescription is not to revoke per se justified claims but to stave off alleged, but actually non-existing or no longer existing claims; not to free a real obligor from any performance but to protect the alleged obligor who is subjected wrongly to the action, albeit perhaps in good faith. «
C. Protection against unexpected suits
Nonetheless, it is of course possible that sometimes in spite of the passing of |
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long periods of time, the elements of the claim can still be proven clearly. The |
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fact that prescription still applies in such cases is defended on the grounds 17 that |
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the obligor frequently requires protection against per se justified claims, espe- |
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cially such as were not known to him and of which he often could not have any |
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knowledge 18. |
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12System und Prinzipien 168. See also Mader in Schwimann, ABGB VI3 § 1451 no 2.
13Mansel, Die Reform des Verjährungsrechts, in: Ernst / Zimmermann ( eds ), Zivilrechtswissenschaft und Schuldrechtsreform 348.
14B.A. Koch in: Liber Amicorum Pierre Widmer 175.
15On this Piekenbrock, Befristung 327 ff, 360, who only considers the obligor worthy of protection if he did not know of the respective claim.
16Begrenzung privater Rechte I 10; following this line Peters / Zimmermann, Verjährungsfristen, in: Bundesminister der Justiz ( ed ), Gutachten und Vorschläge zur Überarbeitung des Schuldrechts I 104, 189, 288; Cf also Grothe in MünchKomm, BGB I / 15 Vor §§ 194 no 6.
17Spiro, Begrenzung privater Rechte I 11 f.
18Piekenbrock, Befristung 333.
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The law also protects, however, those obligors who must know of their obliga- |
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tion or in fact did know of such. It is submitted that not only innocently unknow- |
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ing obligors are protected because otherwise the obligor would be required to |
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rebut the allegation of male fides put by the obligee and thus would once again be |
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exposed to evidentiary difficulties due to the passing of long periods of time. |
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A further decisive reason is that even such obligors are deemed worthy of pro- |
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tection as no longer should have seriously had to anticipate that a claim, which is per |
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se founded and would have been enforceable in the usual manner, would still be |
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actioned. The obligor cannot be blamed for the fact that after a certain amount of |
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time he no longer expects the claim to be enforced against him, as Spiro 19 explains: |
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» Anyone who wishes to manage his financial affairs sensibly must be able to make |
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arrangements and have an overview of his obligations and cannot make resources |
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available to meet unexpected claims ad infinitum. If the claim is then asserted |
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after all after a long period of time, this often impacts upon the obligor no less |
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than if he had not known of it in the first place. « |
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It is not only the surprised obligor who needs protection, however, but also |
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those who fear being faced with claims that in end effect are never asserted by the |
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obligees. The supposed obligation encumbers the obligor no less than a real one |
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because it means he must keep resources available. In parenthesis, this assumes |
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he knows how much of his resources to keep available which is not often the case. |
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In any respect, it would not be acceptable for him to have to maintain this provi- |
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sion of resources for an unlimited time if the obligee does not seek satisfaction |
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although he could do so 20. On the other hand, the obligor also cannot be expected |
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to conduct research as to uncertain claims or even to satisfy definite claims so |
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long as the obligee shows no interest in their enforcement 21. |
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D. Protection of uninvolved parties against being burdened
9 / 8 A further aspect is closely related to that of the surprise element: if claims could still be asserted without limitation even after many decades, this would also very strongly increase the probability that uninvolved persons would also be burdened with duties to perform, such as had neither entered into the contractual obligation
19 Begrenzung privater Rechte I 14; following this line Peters / Zimmermann in: Bundesminister der Justiz, Gutachten, Schuldrecht I 104, 189, 288. Cf also von Bar, Deliktsrecht II no 545.
20 Peters / Zimmermann in: Bundesminister der Justiz, Gutachten, Schuldrecht I 189; Piekenbrock, Befristung 319 also sees an public economic interest in this connection in relation to the increased overall economic liquidity. The obligor is only worthy of protection in their eyes if he assumes he has already met his obligation ( idem, Befristung 501 ).
21 Spiro, Begrenzung privater Rechte I 16.
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nor obtained the unjust enrichment nor realised the wrong triggering the duty to compensate. At first glance, this appears only to be the case when the obligors are natural persons. Even then it could still be argued that the liable heirs as universal successors have also taken over the assets and besides enjoying the advantages should be the ones to bear the disadvantages. Nonetheless, it must also be borne in mind that heirs who know nothing of the claims would suffer a special disappointment of reliance and, on the other hand, in the case of unlimited liability, the assets inherited may not always suffice to cover the liabilities.
Besides this, the argument that in the absence of prescription above all uninvolved parties would be affected also applies ultimately to legal entities: while the liabilities in this respect do affect the same obligor, namely the legal entity, unexpected, substantial liabilities nevertheless naturally also affect the shareholders. Ultimately, under some circumstances the economic impact thus affects completely different natural persons than those who were burdened at the time of the damaging event. This is the case particularly if the shares of a company previously belonged to a sole shareholder ( eg, the state ) or several large shareholders, but these shareholders have changed or the company has since changed to a company offering shares for public subscription. Above all in the latter case, if claims that arose decades ago were actioned, this would often impact on small investors to whom the obligation could no longer be imputed in any way and in relation to whom there could no longer be any talk of a moral obligation to satisfy claims for unjust enrichment or compensation.
E. The notion of laches
Finally, the relationship between prescription and laches and renunciation is |
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emphasised 22. The obligee’s conduct, namely his inactivity despite the possibility |
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open to him of asserting his claim, can cause the obligor to rely on the fact that |
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the obligee will no longer enforce his claim 23. Therefore, the prerequisites for an |
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implied renunciation are often satisfied. However, even if there is no transaction |
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of renunciation, the inactivity of the obligee induces reliance and creates a diffi- |
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cult position for the obligor. In such cases too, the loss of the right is justified, as |
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Spiro 24 persuasively highlights: » However, he should bear the consequences of his |
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22Spiro, Begrenzung privater Rechte I 25 ff; Piekenbrock, Befristung 362 ff.
23If this assumption of the obligor's is not only based on the time that has passed since the claim arose but also on the conduct of the obligee, and this assumption is objectively justified, the obligee’s claim is forfeit under German law ( Grothe in MünchKomm, BGB I / 15 Vor §§ 194 no 13 ).
24Begrenzung privater Rechte I 26. Cf also Klang in Klang, ABGB VI2 563.
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own hesitation not only where he took them on but also in cases where he would have been able to avoid them without undue effort, hence when his silence if he wanted to preserve his right was incorrect. «
9 / 10 This addresses a very decisive requirement for the appropriacy of prescription, which F. Bydlinski 25 emphasises: the prerequisites for prescription and the prescription periods must be set out so that it is generally possible for the person holding the right, ie in the typical case, to enforce his right without excessive risks and efforts if he wishes. Then it may truly be said that such person has it in his power to keep the extent of the liable party’s disappointment of expectations and inconvenience as regards the passage of time relatively low by undertaking reasonable measures, he writes. If such does not do this in the long-term then, it is argued, it is justifiable ( also in the sense of the principle of responsibility for oneself ) that he bears the acute negative consequences 26.
II. The present legal position and two problematic issues
A. The prescription period
1.Austrian law
9 / 11 § 1478 sentence 2 ABGB stipulates that as regards prescription » the simple nonuse of a right, which per se could already have been exercised, over thirty years is sufficient «. § 1479 ABGB then further establishes: » All rights against a third party, whether included in the public registers or not, are thus extinguished as a rule at the latest after not being used for thirty years, or by silence in this respect observed for such a long time. «
Hence, claims are prescribed after thirty years at the latest; there are no longer prescription periods applicable to the rights of natural persons 27. The thirty-year period is only departed from in the opposite direction: there are shorter periods for some claims or additionally a shorter period alongside the long period.
25System und Prinzipien 168.
26Piekenbrock, Befristung 364, supports the view that the question of whether lax pursuance of rights is already a sufficient prerequisite for the loss of the right, cannot be answered in theory but must be weighed up by the legislature.
27Only for the rights of particularly protected entities, such as the public treasury, churches, muncipalities and other legal entities, does § 1485 ( 1 ) ABGB provide for a forty-year period. This differentiation between natural persons and legal entities conflicts the basic idea of equal status provided for by § 26 ABGB and should be redressed.
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In this manner, § 1489 ABGB provides that claims for compensation are pre- |
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scribed in principle within three years starting from the time when the victim |
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becomes aware of the damage and the identity of the damaging party. |
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Only when the damage or damaging party is not known to the victim or if the |
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damage derives from an action punishable under law that can only be committed |
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intentionally and is subject to a possible penalty of more than one-year’s impris- |
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onment, does the thirty-year period apply 28. |
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The appropriacy of shorter prescription periods under tort law, depending on |
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the victim’s knowledge, as opposed to other kinds of claims seems rather dubious |
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as other claims also – eg unjust enrichment claims and also contractual claims – |
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may involve similar difficulties when it comes to discerning the existence of the |
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claim or uncertainties in this respect. German law, with good reason, now pro- |
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vides for this kind of relative prescription in respect of all claims ( § 199 ( 1 ) BGB ). |
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This will not be dealt with in any more detail here. It is largely undisputed, how- |
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ever, that such prescription at least seems justified in the case of compensation |
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claims 29: if the victim still does not assert his claim within a reasonable time |
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although he knows about the damage and damaging party, the serious charge |
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that he has not acted in good time ( Säumigkeit ) may after all be levelled, meaning |
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that his worthiness of protection is greatly reduced 30. |
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Criticism is levelled above all at the length of the thirty-year prescription |
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period, in Austria particularly in the field of lawyers’ liability for errors in advice |
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or representation 31. In particular reference is had to evidentiary difficulties that the |
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lawyer is exposed to due to complex counsel-client relationships, the difficulty to |
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evaluate handling of such and the clients’ duties to cooperate. The corresponding |
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call for the period to be shortened by a special rule exclusively for the field of law- |
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yers’ liability does not seem very persuasive, however; indeed it runs contrary to |
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the principle of equality as very similar arguments could be submitted in respect of other fields, above all for other professions dealing with legal advice such as notaries, but also for the advising capacity of banks in investment matters and of course also in respect of medical advice.
28According to the unanimous view of theory and case law, a criminal law conviction of the damaging party is not a prerequisite for the application of this rule: OGH 5 Ob 560 / 87 in RdW 1988, 128; 1 Ob 532 / 93 in RdW 1994, 244; In more recent times 4 Ob 234 / 06z; M. Bydlinski in Rummel, ABGB II / 13 § 1489 no 5; Mader / Janisch in Schwimann, ABGB VI3 § 1489 no 24, Dehn in KBB, ABGB3 § 1489 no 8.
29On this, eg, Büning, Die Verjährung der Ansprüche aus unerlaubten Handlungen ( 1964 ) 9; Peters / Zimmermann, Verjährungsfristen, in: Bundesminister der Justiz ( ed ), Gutachten und Vorschläge zur Überarbeitung des Schuldrechts I 223; Piekenbrock, Befristung 338 f; von Bar, Deliktsrecht I no 395.
30Peters / Zimmermann, Verjährungsfristen 297.
31Thus, above all Benn-Ibler, Anwaltshaftung, Verjährung, Welser-FS ( 2004 ) 55.
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2.German law
9 / 14 German law proceeds on the basis of a standard, relative prescription period of three years ( § 195 BGB ), which starts to run at the end of the year in which the claim arose and the obligee gained knowledge of the circumstances giving rise to the claim and the identity of the damaging party or would have obtained such knowledge had he not been grossly negligent ( ultimo-prescription 32; § 199 ( 1 ) BGB ) 33.
Besides this, an absolute period is stipulated, ie a maximum period after which a claim expires in any case regardless of the subjective prerequisites for prescription 34. In respect of claims for compensation, distinctions are made according to the ranking of the legal good infringed: claims based on injury to life, the body, health or liberty are prescribed according to § 199 ( 2 ) BGB at the latest 30 years after the date on which the act, breach of duty or other event that caused the damage, occurred 35. This rule also applies to all other compensation claims ( § 199 ( 3 ) no 2 BGB ); however, such may also be prescribed earlier: pursuant to § 199 ( 3 ) no 1 BGB a compensation claim that is not directed at compensation for damage to life, the body, health or liberty, is barred at the latest ten years after such arises. The period that ends first is applicable 36.
3.Swiss law
9 / 15 Compensation claims are prescribed under Art 60 OR one year after knowledge is gained of the damage and the identity of the damaging party; the preliminary draft for a reform of tort law, on the other hand, provides for a period of three years 37. Simple » constructive knowledge « is not sufficient for the commencement of the prescription period; the victim must actually know 38. At the latest after 10 years have passed, the claim expires in any case 39, unless it is based on an action punishable under law in which case Swiss criminal law provides for a longer prescription period ( Art 60 ( 2 ) OR ).
32Grothe in MünchKomm, BGB I / 15 § 199 no 41; Heinrichs in Palandt, BGB68 ( 2009 ) § 199 no 38.
33Cf on this Grothe in MünchKomm, BGB I / 15 § 199 no 25 ff; Heinrichs in Palandt, BGB68 § 199 no 2; Piekenbrock, Befristung 338 ff.
34On the one hand, it must be borne in mind in this respect that these are special prescription rules and thus the ultimo-rule does not apply, ie the periods start to run exactly on the day; on the other hand, the rules on suspension, suspension of expiry and re-commencement of prescription also apply here ( §§ 203 ff BGB ), so that the maximum period may also be exceeded. Cf Grothe in MünchKomm, BGB I / 15 § 199 no 43; Heinrichs in Palandt, BGB68 § 199 no 39.
35Grothe in MünchKomm, BGB I / 15 § 199 no 46; Heinrichs in Palandt, BGB68 § 199 no 42.
36Grothe in MünchKomm, BGB I / 15 § 199 no 47; Heinrichs in Palandt, BGB68 § 199 no 44.
37Loser-Krogh, Kritische Überlegungen zur Reform des privaten Haftpflichtrechts – Haftung aus Treu und Glauben, Verursachung und Verjährung, ZSR NF 122 II ( 2003 ) 200.
38Keller, Haftpflicht im Privatrecht II2 ( 1998 ) 260; Däppen in BSK, OR I4 Art 60 no 6 ff.
39Insofar as the special rule in Art 60 OR corresponds to the general prescription provision under Art 127 OR.
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B. Commencement of the prescription period
1. Austrian law |
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As provided by § 1478 ABGB, the prescription period in principle only begins to |
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run as of the date on which the right could first have been exercised. This takes |
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account of the idea that the obligee’s claim should only become barred if he could |
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already have asserted it by means of reasonable measures 40. |
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The requirement for the commencement of prescription highlighted by |
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§ 1478 ABGB to the effect that the right » could per se already have been exercised « must mean that the prescription period for compensation claims can only begin when the damage is incurred by the victim: prior to the incurrence of the damage the claim for compensation has not yet arisen and can accordingly not yet be asserted. This is now generally recognised in respect of the short prescription period which only commences when the victim knows of the damage and the identity of the damaging party 41 and is also widely advocated in respect of the long prescription period and is explicitly provided by § 20 AtomHG ( Nuclear Liability Act ) 42. On the other hand, some academic literature as well as case law also takes the stance that the long prescription period already commences running when the act is committed 43.
Besides this, it is unanimously accepted that in relation to the long prescription period only the objective possibility of exercising the right is relevant, ie that there is no legal obstacle to asserting the claim 44. Subjective obstacles or such as lie only within the person of the party with the claim, such as lack of knowledge of
40Thus also from a comparative perspective Zimmermann / Kleinschmidt, Presciption: General Framework and Special Problems Concerning Damages Claims, in: Koziol / B.C. Steininger, Yearbook 2007, 31 and 34 ff.
41See Dehn in KBB, ABGB3 § 1489 no 4 with additional references; Kletečka / Holzinger, Die Verjährung von Schadenersatzansprüchen aus fehlerhafter Anlageberatung, ÖJZ 2009, 629.
42Thus also OGH 2 Ob 58 / 91 in JBl 1993, 726 ( Ch. Huber ); F. Bydlinski, Schadensentstehung und Verjährungsbeginn im österreichischen Recht, Steffen-FS ( 1995 ) 74; M. Bydlinski in Rummel, ABGB II / 13 § 1489 no 6; P. Bydlinski / Vollmaier, Österreichisches Verjährungsrecht, in: Remien ( ed ), Verjährungsrecht in Europa – zwischen Bewährung und Reform ( 2011 ) 221; Ertl, Die Verjährung künftiger Schadenersatzansprüche, ZVR 1993, 33; B.A. Koch in: Liber Amicorum Pierre Widmer ( 2003 ) 191; Koziol, Haftpflichtrecht I3 no 15 / 19; Madl, Beginn der langen Verjährung nach § 1489 Satz 2 ABGB unabhängig vom Eintritt eines Schadens ?, Koziol-FS ( 2010 ) 759 ff.
43In Austria in particular Klang in Klang, ABGB VI2 637 f; I. Welser, Die lange Verjährungsfrist als zeitliche Haftungsschranke, ecolex 1993, 657; R. Welser, Schadenersatz statt Gewährleistung ( 1994 ) 87 f; OGH 4 Ob 57 / 78 in DRdA 1980, 27 ( Koziol ); 4 Ob 76 / 81 in DRdA 1983, 186 ( P. Bydlinski ); Mader / Janisch in Schwimann, ABGB VI3 § 1489 no 25. Mader, Grundprobleme des Verjährungs rechts, FS 200 Jahre ABGB ( 2011 ) 1286 f. On German law see Moraht, Verjährungsrechtliche Probleme bei der Geltendmachung von Spätschäden im Deliktsrecht ( 1996 ) 118.
44See eg, OGH 1 Ob 563 / 85 in SZ 58 / 122 = JBl 1986, 317 ( Ch. Huber ); most recently 2 Ob 31 / 07h in ÖBA 2008, 1513; M. Bydlinski in Rummel, ABGB II / 13 § 1478 no 2; Dehn in KBB, ABGB3 § 1478 no 2; Mader / Janisch in Schwimann, ABGB VI3 § 1478 no 3.
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the claim or a mistake, have no influence on the commencement of the prescrip- |
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tion period 45. |
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2. German law |
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9 / 18 The commencement of the standard three-year prescription period requires either knowledge 46 or at least grossly negligent ignorance 47 of the claim and the obligor as well as that the claim has already arisen 48. Thus, the occurrence of the damage 49 must also have ensued. This also applies to the ten-year period under § 199 ( 3 ) no 1 BGB 50.
The absolute limit of 30 years for the prescription of compensation claims commences according to the explicit rule under § 199 ( 2 ) and ( 3 ) no 2 BGB regardless of when such claims arose on the date the act was committed, the breach of duty or other event that caused the damage occurred; ie also prior to the occurrence of the damage 51.
3. Swiss law
9 / 19 Pursuant to Art 60 OR, compensation claims are prescribed one year after knowledge of the damage and identity of the damaging party. Thus, it is a prerequisite that the damage has occurred as otherwise it would not be possible to have knowledge of such 52. With respect to the commencement of the absolute ten-year period, however, the date of the action causing the damage and not the occurrence of the damage is material 53.
45M. Bydlinski in Rummel, ABGB II / 13 § 1478 no 4; Dehn in KBB, ABGB3 § 1478 no 2; Mader in Schwimann, ABGB VI3 § 1478 no 6.
46Grothe in MünchKomm, BGB I / 15 § 199 no 25 ff; Heinrichs in Palandt, BGB68 ( 2009 ) § 199 no 23 ff.
47Grothe in MünchKomm, BGB I / 15 § 199 no 28 ff; Heinrichs in Palandt, BGB68 § 199 no 36 f.
48A claim is deemed to have arisen when it could be asserted at the earliest and – if necessary – enforced by a court ( in more recent times BGH in NJW-RR 2000, 647 ). Cf also Grothe in MünchKomm, BGB I / 15 § 199 no 4; Heinrichs in Palandt, BGB68 § 199 no 2 ff.
49Von Bar, Deliktsrecht II no 550; Grothe in MünchKomm, BGB I / 15 § 199 no 9; Heinrichs in Palandt, BGB68 § 199 no 15 f.
50Grothe in MünchKomm, BGB I / 15 § 199 no 47; Heinrichs in Palandt, BGB68 § 199 no 40.
51Grothe in MünchKomm, BGB I / 15 § 199 no 46; idem expresses constitutional law concerns in MünchKomm, BGB I / 15 Vor §§ 194 ff no 9 with respect to this rule; Heinrichs in Palandt, BGB68 § 199 no 42.
52In this sense BGE 126 III 163 f; Däppen in BSK, OR I4 Art 60 no 7.
53Keller, Haftpflicht im Privatrecht II2 ( 1998 ) 261; Däppen in BSK, OR I4 Art 60 no 9.
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Chapter 9 |
Prescription of compensation claims |