Экзамен зачет учебный год 2023 / Koziol_BasicQuestions_Germanic
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Appendices |
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Austrian Draft Proposal |
Section 4 |
Product liability |
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Liability for defective products ........................................................... |
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Producer ................................................................................................... |
341 |
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Defectiveness ........................................................................................... |
341 |
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Limitation of liability ........................................................................... |
341 |
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Exclusion of liability ............................................................................. |
342 |
Section 5 |
Environmental liability |
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Liability for environmental damage .................................................. |
342 |
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Presumed causation .............................................................................. |
342 |
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Environmental damage ........................................................................ |
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Prescription ............................................................................................. |
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I. General Part |
Section 1 |
Principles of liability |
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Fundamental rule |
§ 1292. ( 1 ) |
It is the task of tort law to compensate damage and at the same time |
to thereby create an incentive to avoid damage.
( 2 ) A person is liable to compensate damage to another if that damage can be legally attributed to him.
( 3 ) The consequences of mere chance are borne by the person whose patrimony or person is thereby affected.
Damage; protected interests
§ 1293. ( 1 ) Damage is any harm that a person suffers to his person, patrimony or any other of his protected interests. If such harm can be measured in money then there is pecuniary damage, otherwise it is non-pecuniary damage.
( 2 ) The protection of interests depends in particular on the interest’s rank and value, the precision of its definition and its obviousness, but also on the inter-
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ests of others in free development and in the exercise of rights as well as public interests.
( 3 ) The clearly defined and manifest personality rights such as above all, life and bodily integrity, the rights in rem and intellectual property rights, enjoy the highest protection. Pure economic interests outside of contractual relationships are only protected by way of exception.
Causation
§ 1294. ( 1 ) An act, an omission or another event is the cause of damage if it would not otherwise have occurred.
( 2 ) Damage can be attributed to a person if he caused it or the causative event was otherwise within his sphere. This also applies if the event was highly likely to cause the damage but the same is true of another event ( cumulative and superseding causation ). If one of the events is a chance or caused by the victim or if only the one or the other of the events could have caused the damage ( alternative causation ) then the damage is to be apportioned according to the weight of the respective grounds for imputation and the likelihood of causation.
( 3 ) To the extent that the same damage is attributable to multiple persons and nothing else arises from para. 2, they are solidarily liable. If multiple persons have acted wrongfully together, it is presumed that each of them caused the entire damage.
( 4 ) In the case of multiple events, all of which may have caused the damage, if none has caused the entire damage or a determined part thereof, but each, however, is highly likely to have caused a part; it is presumed that the events have caused equal shares of the damage.
( 5 ) Insofar as multiple persons are solidarily liable, recourse shall be according to the weight of the respective grounds for imputation, especially the gravity of the fault and the degree of the danger.
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Section 2 |
Liability for fault or otherwise wrongful conduct |
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Conditions for fault liability |
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§ 1295. ( 1 ) |
A person is liable on the basis of fault if he unlawfully, that is by vio- |
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lating the objective standard of conduct ( § 1296 ), and culpably ( § 1300 ) injures a |
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protected interest or contravenes a concrete duty of care ( protective law ) or acts |
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contra bonos mores. |
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Appendices |
Austrian Draft Proposal |
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Austrian Draft Proposal |
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( 2 ) A person violates bonos mores if he acts contrary to the fundamental values of the legal order or grossly offends against the general morality, if he acts only with the object of injuring another or if he pursues interests which are in gross disproportion to those of the victim.
Standard of conduct
§ 1296. ( 1 ) In general, the standard of conduct to be applied is that which is to be expected of a reasonable person having regard to the interests of others under the circumstances given. In this context, the rank and value of the interests endangered and the interests pursued, the hazardousness of the situation, the proximity between the parties involved, the possibility of averting the danger and the cost and effort associated therewith, shall be considered.
( 2 ) A person who facilitates traffic or creates or maintains a source of danger shall apply all special care reasonable that is necessary in order to prevent damage.
Duty to act
§ 1297. Everyone has a duty to prevent damage which discernibly threatens another if there is a special relationship to the endangered person, if he facilitates traffic or creates or maintains a source of danger or if the threatened damage is grossly out of proportion to the burden of preventing it.
Protection of pure economic interests
§ 1298. ( 1 ) Duties of care to protect pure economic interests consist in particular in a contractual relationship, in the case of pre-contractual contact, of declarations on which the grantee is recognisably dependent and which are directed at arousing the trust of the grantee, as well as in the case of rules of conduct for the protection of patrimony. The same applies when the tortfeasor is aware of the threatened damage and there is a gross disproportion between the interests endangered and those pursued.
( 2 ) A person who knows the claim a third party has may not consciously work towards a breach of contract by the debtor, unless he thus protects his own right which is founded earlier in time or in the absence of knowledge of the third party’s claim. A person who merely takes advantage of the fact that a debtor is determined on breaching contract is only liable if he knows the debtor’s obligation or if this obligation is manifest and he cannot prove that the damage would also have occurred regardless.
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Defences based on justifications and necessity
§ 1299. ( 1 ) A person who defends himself or others in an appropriate fashion against a present or immediately threatening unlawful attack on life, bodily integrity, liberty or patrimony ( justifiable defence of oneself or another person ) or who acts in the non-postponable implementation of a right of his own ( lawful selfhelp ) or with the valid consent of the victim or in some other manner justified on the basis of the law, shall not be liable.
( 2 ) A person who causes damage in circumstances of necessity in order to avert an immediate threat of danger to himself or others may have his liability reduced or extinguished. The relation of damage and danger, any omission of defence out of consideration for the endangerment as well as the pecuniary circumstances of both sides shall be taken into account thereby. There is full liability if the tortfeasor brought about the emergency culpably.
Fault
§ 1300. ( 1 ) A person is at fault if he should have acted differently and on the basis of his abilities and knowledge would have been in a position to do so and would have been able to foresee the damage.
( 2 ) A person who culpably contravenes a concrete duty of care ( protective law ) is liable even when he could not foresee the damage. A person who knowingly acts unlawfully and who at the least approvingly accepts the damaging consequence of his conduct acts with intent, otherwise negligently.
( 3 ) Persons over 14 years are presumed to have ordinary abilities and knowledge; in the case of persons between 7 and 14 years the opposite is presumed. Persons under 7 years are under no circumstances capable of fault.
( 4 ) A person who enters into a contract to bring a performance must bear the consequences of lacking the abilities and knowledge necessary. The same applies when someone exercises without necessity an activity that requires special abilities and knowledge.
Defective conduct in the case of persons under 14 or lacking mental competence
§ 1301. ( 1 ) If persons below the age of 14 or mentally incompetent persons violate the objective standard of conduct, then the basis and extent of their liability depends on their being at fault after all by way of exception, on any benefit they derive from the injury and on any omission of defence out of consideration for them as well as their pecuniary circumstances and those of the victim. The same
Appendices Austrian Draft Proposal
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Austrian Draft Proposal |
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applies when another person’s conduct is not at fault because he lacks the necessary abilities and knowledge.
( 2 ) A person who has voluntarily put himself in a condition of mental incapacity must compensate the damage another suffers as a result.
Defective conduct in enterprises
§ 1302. ( 1 ) A person who operates an enterprise out of commercial or vocational interests is also liable for damage caused by a defect in the enterprise or its products or services. The entrepreneur is not liable if he proves that the care necessary to avert the damage was exercised.
( 2 ) A defect is any deviation from the standard that can be expected from the enterprise, its products or services according to the presentation, the state of the art of science and technology and the customary practice. The defect must be proven by the victim.
( 3 ) Pure economic loss is not compensable under this provision.
Defective conduct in the case of special danger
§ 1303. ( 1 ) A person who creates or maintains a special danger is liable for the damage resulting therefrom, unless he proves that the care necessary to avert the damage was taken.
( 2 ) A special danger can in particular be generated by animals, buildings, motor vehicles or activities like cycling or skiing at high speed.
Section 3 |
Strict liability |
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Liability for sources of high danger |
§ 1304. ( 1 ) |
The keeper of a source of high danger is liable insofar as this danger |
results in damage.
( 2 ) Who the keeper is depends on who has an especial interest in the source of danger, who bears the costs and who exercises the actual power of disposition.
( 3 ) A source of high danger exists when a thing either in itself or in the course of its ordinary use or an activity involves the risk of frequent or serious damage in spite of the exercise of due care. Sources of high danger include in particular nuclear facilities, dams, oil and gas pipelines and electric power lines, ammu-
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nition factories and depots, also aircraft, railway, cableway, motor vehicles and motor boats as well as mines and blastings.
( 4 ) Liability is excluded if the damage is caused by force majeure or in spite of the thing being free from defect and exercise of the greatest possible care ( unavoidable event ); in particular when such damage is attributable to the conduct of the victim, of a third party not employed in the operation of the thing or of an animal. In cases of especially high danger, e.g. nuclear facilities, dams, aeroplanes or ammunition factories, liability can also merely be reduced in accordance with the degree of danger. The same applies when the unavoidable event substantially increases the danger posed by a thing in the concrete situation ( exceptional operational risk ).
( 5 ) Liability can also be excluded or reduced if the victim has knowingly accepted exposure to the danger of a special nature.
Section 4 |
Liability for third parties and for technical equipment |
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Auxiliaries in the performance of obligations ( Erfüllungsgehilfen ) |
§ 1305. ( 1 ) |
A principal is liable to his partner for the misconduct of his auxilia- |
ries, who he uses in the performance of his obligations or who work for him on the basis of the law. This applies not only in the case of breach of performance duties but also to other misconduct not extraordinary for the activity of such performance agent ( Erfüllungsgehilfe ).
( 2 ) A performance agent ( Erfüllungsgehilfe ) can also be someone who takes on an activity to carry it out independently.
( 3 ) The principal is also liable for the failure of technical equipment which he uses in the same way as an auxiliary in the performance of his obligations.
Other auxiliaries ( Besorgungsgehilfen )
§ 1306. ( 1 ) In the absence of a pre-existing obligation vis-à-vis the victim the principal is only liable for the damage caused by the misconduct of his auxiliaries if the victim proves that the auxiliary was inept or that the principal did not select him carefully or did not supervise him adequately. If the principal is an entrepreneur, then he bears the burden of proof.
( 2 ) In the case of special danger ( § 1303 ) and sources of high danger ( § 1304 ) the principal is in any case also liable for the misconduct of his auxiliaries ( Besorgungsgehilfen ).
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Austrian Draft Proposal |
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( 3 ) A person who undertakes to carry out work independently is not an auxiliary in the sense of this provision ( Besorgungsgehilfe ). The principal is liable only if he has not selected him with reasonable care or not adequately supervised him.
( 4 ) The principal is also liable for the failure of technical equipment which he uses in the same way as an auxiliary if the victim proves that the equipment was unsuitable, the principal did not select it with reasonable care or did not monitor it adequately. If the principal is an entrepreneur, he bears the burden of proof.
( 5 ) The principal is furthermore liable for the misconduct of persons who have a leading position in his scope of activities with their own decision-making powers and the authority to issue directives. Corporate bodies must in any case answer for their constitutional organs.
Liability of the auxiliaries
§ 1307. The liability of auxiliaries under other provisions is unaffected by the liability of the principal ( §§ 1305 and 1306 ). Insofar as principal and auxiliaries are both liable they must compensate solidarily.
Liability of supervisory persons
§ 1308. Supervisory persons are liable for the misconduct of the persons entrusted to them if they are negligent in their duties. Insofar as the supervisory persons must and can compensate for the non-culpable misconduct of persons below the age of 14 or mentally incompetent persons, the victim has no claim against these persons.
Section 5 Liability for encroachment upon another’s right
§ 1309. A person who on the basis of an official or legal authorization encroaches upon another’s right is liable for the damage thus caused, unless otherwise provided. The same applies to anyone who merely invokes such authorization.
Section 6 |
Restrictions of liability |
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Restrictions of imputation |
§ 1310. ( 1 ) |
Compensation shall be paid for damage adequately caused and |
which is covered by the protective purposes of the norm that was infringed or
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which in some other way was the basis for liability. The weight of the grounds for imputation and the benefits gained by the person liable are to be considered.
( 2 ) If the tortfeasor has behaved unlawfully but the damage would also have occurred if he had behaved lawfully, the damage must be apportioned according to the weight of the grounds for imputation.
§ 1311. Material benefits which would have been gained through unlawful behaviour are not to be compensated unless the purpose of the prohibition norm is not opposed by this.
§ 1312. The victim can also claim compensation if the damage has been shifted to a third party, unless the tortfeasor ought thus to be relieved. Insofar as the third party renders to the victim, the right to compensation is transferred to him.
Contributory conduct or activity
§ 1313. ( 1 ) If the victim has contributed to his damage or neglected to mitigate it, then the damage is to be apportioned. In particular, the gravity of the fault, the degree of danger and the existence of several grounds for imputation shall be taken into account thereby. In case of doubt, the damage shall be apportioned evenly. In the event of causing death, the contributory conduct of the person killed is decisive.
( 2 ) Even in the absence of a special legal relationship, the misconduct of persons to whom the victim entrusted the damaged goods is imputable to the victim. This does not apply to legal agents or to persons who have been assigned to carry out the work independently.
( 3 ) If the grounds for imputation on one side far outweigh those on the other, then the damage shall not be apportioned. Also to be considered in this context is whether the tortfeasor was under the very obligation to prevent the damage which occurred.
Section 7 Type and extent of compensation
Restitution in kind
§ 1314. The victim can demand the restoration of the previous or a similar or an equivalent state as far as restoration in kind is possible and is not substantially outweighed by the interests of the tortfeasor in monetary compensation. The tort-
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Appendices |
Austrian Draft Proposal |
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feasor can insist on restoration in kind if his interest therein substantially preponderates.
Compensation for pecuniary damage
§ 1315. ( 1 ) If restoration is not to be in kind, then the tortfeasor shall compensate the entire damage in money. The damage is to be calculated under consideration of all consequences, including loss of profit, precisely for the victim ( concrete calculation ). Benefits the victim gained from the damaging event reduce the claim for damages, with the exception of mere shifts of damage ( § 1312 ) or allocations intended to serve the interests of the victim.
( 2 ) If no substantial interest of the person liable to pay compensation speaks against it, the victim can instead of restoration in kind ( § 1314 ) claim either reimbursement for the amount of money used for this purpose or an advance. The victim shall render account within a reasonable time for the disposal of this advance.
( 3 ) If restoration in kind is not possible and if therefore the victim replaces the damaged item with a new one then the victim can claim for the replacement value of the damaged thing and the costs incurred by the earlier replacement. If a replacement value cannot be established, the costs of the acquisition or the making of the newer thing with a deduction for the possibility of longer use shall be decisive.
( 4 ) If the damaged good has a market value, the victim can require that the damage be calculated according to the market price at the time of the damaging event ( abstract calculation ).
Compensation for non-pecuniary damage
§ 1316. ( 1 ) Non-pecuniary damage shall always be compensated insofar as the restoration in kind is possible and feasible ( § 1314 ).
( 2 ) Whether damages are to be paid depends on the significance of the damaged good, the objective traceability, extent and length in time of the impairment and the weight of the grounds for imputation. For serious and objectively traceable injuries to personality rights, damages shall always be paid. Insignificant harm is not compensable.
( 3 ) An appropriate compensation for pain and suffering is to be paid in the following cases in particular
1. bodily injury, injury to health or liberty,
2. for the suffering of closely related persons in the event of causing death or particularly severe injury of a person; in the case of spouses, parents
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and children a close relationship is presumed, other persons must prove a comparable relationship,
3. in the case of sexual abuse or injury to the right to sexual self-determina- tion by means of malice, threat or abuse of a relationship of dependence or authority,
4. in the case of intentional or serious discrimination because of gender, a disability, ethnic origin, religion or comparable reasons,
5. in the case of intentional or serious invasion of privacy or,
6. insofar as serious grounds for imputation exist, for the fear of dying or of being seriously injured if such fear has been caused by a concrete endangerment.
( 4 ) In the case of intentional damage to items of property, the value of special affection shall be compensated. In the case of breach of a contract, the non-pecu- niary damage is to be compensated if the contract is aimed above all at the satisfaction of non-pecuniary interests and these are substantially impaired and an appropriate compensation cannot be obtained anyway by the reversal of the transaction.
( 5 ) In assessing damages, regard must be had to the circumstances listed in para. 2 and the benefits gained by the tortfeasor from the conduct establishing liability. In the case of compensation for the damage because of improper performance of a contract, the amount of the agreed contract price is to be considered.
( 6 ) Claims for the compensation of non-pecuniary damage are transferable and hereditary.
§ 1317. Continuing damage is to be compensated by a lump sum for the past and by periodical payments for the future. For good cause, the victim can seek compensation by a lump sum if this is not an unreasonable economic burden on the tortfeasor. The lump sum is to be calculated according to the estimated length of time the periodical payments would be paid, with the interest discounted.
Reduction of damages
§ 1318. In exceptional circumstances, damages can be reduced if they would be an unreasonable and oppressive burden for the tortfeasor and a merely partial compensation would be reasonable to the victim. The weight of the grounds for imputation, the economic circumstances of the victim as well as those of the tortfeasor and the benefits gained by the latter are to be taken into consideration.
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Appendices |
Austrian Draft Proposal |