Экзамен зачет учебный год 2023 / Koziol_BasicQuestions_Germanic

III.  Attempt to find rules on prescription that are consistent with the system and value judgements

The rule on the short prescription period is in principle well accepted 54. The long 9 / 20 prescription period, in contrast, gives rise to very substantial debate above all regarding when the period starts to run and its long duration. Accordingly, these questions shall be looked at in more detail below.

A. Commencement of the long prescription period

commences when the act is committed and not only upon the later occurrence of the damage. Klang’s 55 rationale for this is highly contradictory and thus not persuasive: he concedes that the issue is not expressly regulated by the law, but argues that the solution derives from the general rule under § 1478 ABGB, » as the objective possibility to exercise the compensation claim exists as of the infliction of the damage «. However, the argument based on § 1478 actually speaks against the conclusion advocated by Klang as this provision requires that the claim could already have been asserted before the prescription period can start to run, and according to Klang’s own – correct – explanations, the claim for compensation only arises when the damage is inflicted, ie upon the occurrence of the damage. Ehrenzweig 56 therefore rightly contends that the commencement of the prescription period even before the damage occurs constitutes an exception to the rule under § 1478 ABGB. Nonetheless, he does not offer any rationale for this deviation, he merely points to the earlier § 852 BGB, which expressly stipulated the same.

However, this reference does not prove anything as there is in fact no corresponding rule in Austrian law, instead only the general provision of § 1478 ABGB, which sets out precisely the opposite. As prescription is based on the idea that a claimant who does not act in good time ought to lose his claim after a certain time in order to ensure clarity in legal relationships, the concept clearly requires that the claimant could already have asserted the claim and that the obligor could have anticipated it. Neither of these is the case so long as no damage has occurred as no claim can have arisen until then either. Thus, the prescription period here can only start to run when the damage occurs as well.

54See also Zimmermann, » … ut sit finis litium «, JZ 2000, 861.

55Klang in Klang, ABGB VI2 637 f.

56Ehrenzweig, System II / 12 79 FN 98a.

9 / 22 This solution does not, as Rebhahn 57 opines, ascribe too much significance and intrinsic value to the terms, in particular that of the occurrence of the damage; rather this is a decision based on value judgements. It is also very appropriate and in harmony with the basic values: once the tort law criteria are met, the victim in principle has a compensation claim. The awarding of a compensation claim is based on it being more reasonable for the damaging party ultimately to bear the damage when the grounds for liability are fulfilled; ie the victim appears more worthy of protection. If there are no grounds inculpating the victim in any way, not even objective failure to act in good time as regards enforcing a claim, then there is no reasonable justification for robbing the victim of his rights merely because of the passage of time and to release the damaging party from liability. Rebhahn 58 cannot rebut these arguments either by resorting to the terminological trick of construing the passage of time as a ground for liability and only accepting the claim has arisen provided it has done so prior to the expiry of the chronological limit on liability. By these means, he seeks to elude to the argument that he deprives the victim of his compensation claim even before such has arisen and thus before the victim has had any chance at all of asserting it; he simply refuses to accept that the claim has arisen. Such re-classifications cannot provide any persuasive answers to issues of value judgements.

9 / 23 Therefore, there is still no discernible reason why the victim should be any less worthy of protection and thus denied his claim if, for instance, due to slowworking chemical substances or radiation, damage only occurs more than 30 years after the action imputable to the damaging party 59. Why should such victims be left without any compensation at all for their loss of earnings, medical costs and pain and suffering ? With all due respect for the interests of the damaging party in having closure as regards past events at some point 60, the basic value determined by the legal system must be kept in mind, namely that when all grounds for liability are met, the victim is recognised as being more worthy of protection than the damaging party.

Exclusively taking into account the interests of the responsible damaging party is very one-sided and thus inappropriate: someone who is possibly exposed to the damaging effects of an event triggering liability can after all not demand that after a certain time the damage no longer be allowed to occur since he is now entitled

57On the new prescription rule in the BGB and on the long prescription period for compensation claims, Welser-FS ( 2004 ) 867. Firmly against this view Madl, Koziol-FS 774 ff.

58Welser-FS 867.

59On other cases in which damage ensues long after the event triggering liability, see Zimmermann / Kleinschmidt, Prescription: General Framework and Special Problems Concerning Damage Claims, in: Koziol / B.C. Steininger, Yearbook 2007, 49 ff.

60Thus, eg Rebhahn, Welser-FS 869; Zimmermann, Comparative Foundations of a European Law of Set-Off and Prescription ( 2002 ) 99.

to assume that no exposure will ensue. Nature does not admit of any human time limits in respect of how long damage is allowed to arise. Why then should the responsible damaging party be granted the security of not being exposed to any burden after a certain time although the victim cannot attain any security in precisely this respect ? Why should the security interests of the damaging party, who has acted wrongfully and culpably, be prioritised over the security interests of the victim who is not responsible for bringing about the unfortunate situation ?

This does not by any means constitute excessive efforts towards justice for 9 / 24 individual cases 61 but in fact the implementation of the basic value of the law of

tort, namely that when certain grounds for liability are met, the victim should not ultimately have to bear the disadvantage but instead may shift it to another who is more proximate to the damage, eg because of having acted in a wrongful and culpable manner. This is why the German and Swiss solutions which are based on the commission of the damaging act are not persuasive. Far better-founded would seem to be those rules, above all the French and Italian, that dispense with any long, objective time limit and simply attach the prescription period to knowledge on the part of the victim 62.

B. The length of the long prescription period

61Thus, Rebhahn, Welser-FS 869.

62Zimmermann / Kleinschmid in: Koziol / B.C. Steininger, Yearbook 2007, 55 f.

63See Zimmermann, European Law of Set-Off and Prescription 99 ff.

64In favour of differentiation also Loser-Krogh, Kritische Überlegungen zur Reform des privaten Haftpflichtrechts – Haftung aus Treu und Glauben, Verursachung und Verjährung, ZSR NF 122 II ( 2003 ) 204; Mansel, Die Reform des Verjährungsrechts, in: Ernst / Zimmermann ( eds ), Zivilrechtswissenschaft und Schuldrechtsreform 384; Zimmermann / Kleinschmidt in: Koziol / B.C. Steininger, Yearbook 2007, 51 ff.

system. Therefore, it is not surprising that this idea also plays a significant role in English law: the proposal of the English Law Commission in 2001 sets out that personal injury claims should not be subjected to any special long prescription periods at all but only to the standard, short prescription periods that are based on when knowledge is gained 65. In the Netherlands, there is a corresponding development 66. The idea has also been adopted in the Austrian discussion on reform: pure economic loss is precluded from the thirty-year prescription period in § 1489 ( 1 ) Austrian Draft; a period of 10 years is stipulated instead in respect of such.

9 / 27 The German rule that provides for a ten-year period only starting with the occurrence of the damage in addition to the thirty-year period which runs from the date the event causing the damage occurred, also highlights the fact that the length of the period must be seen in connection with the material point in time for its commencement. If the commencement of the period is attached to the occurrence of the damage, then the victim at least has the abstract possibility of asserting his claim. In contrast, if the event triggering the damage marks the commencement of the prescription period, then there is a risk that the claim is barred even before it arises and the victim is deprived of any even abstract possibility to assert it. The interests of the victim are of course all the more massively impaired, the shorter the prescription period is, as then even his abstract chance to assert his compensation claim applies in respect of an ever-decreasing amount of the damage.

Vice versa, the lower the risk of an unfounded action due to expiry of time is for the defendant, the longer the prescription period may reasonably be set. This danger can, above all, as provided under § 933 a ( 3 ) ABGB for compensation claims due to the defectiveness of delivered goods and for consequential damage in this respect as well as in general the Austrian Draft ( § 1489 ( 2 ) ), be reduced by a complete reversal of the burden of proof at the cost of the victim.

C. Approaches to regulation

9 / 28 A relative, short prescription period that attaches to the date of the knowledge or constructive knowledge ( obviousness ) of the damage and the liable party is largely undisputed and should be retained as appropriate. If the damage has already occurred and if the victim knows of the damage and damaging party, ie the main elements of the claim, then the victim at least objectively failed to act in good time if he does nothing. The heavier the accusation that he did not act in

65Zimmermann / Kleinschmidt in: Koziol / B.C. Steininger, Yearbook 2007, 53 f; cf also B.A. Koch in: Liber Amicorum Pierre Widmer ( 2003 ) 197 ff.

66Zimmermann / Kleinschmidt in: Koziol / B.C. Steininger, Yearbook 2007, 54 f.

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Chapter 10

Appendices