Экзамен зачет учебный год 2023 / Koziol_BasicQuestions_Germanic
.pdfAppendices |
Austrian Draft Proposal |
337 |
Section 8 Burden of proof
§ 1319. Insofar as not otherwise provided, the victim must prove all requirements of his claim. If the victim has a special legal relationship to the tortfeasor and if he proves a defect in the tortfeasor’s sphere, then the latter must show that he complied with the required standard of conduct. If the victim desires compensation for non-performance of a contractual or legal obligation, then the tortfeasor must prove compliance with the required standard of conduct or the absence of fault.
|
II. Particular Part |
Section 1 |
Special types of damage |
|
Bodily injury |
§ 1320. ( 1 ) |
A person who causes bodily injury or injury to the health of another |
must in particular compensate costs of treatment and care and increased expenses, loss of earnings including future loss of earnings, the impediment of better advancement ( § 1315 ) and for pain and suffering ( § 1316 ). Impairment of earning capacity shall also be compensated even while the actual earnings are not yet reduced.
( 2 ) If the injury leads to death, the tortfeasor must reimburse those who paid the funeral costs and compensate those who were legally entitled to be maintained by the deceased or for whom the deceased would have paid the necessary maintenance, for the loss of this maintenance including future maintenance.
Unwanted birth of a child
§ 1321. ( 1 ) A person who by improper performance of a contract thwarts the decision of parents to avoid the birth of a child in an admissible fashion must render appropriate compensation for the non-pecuniary damage caused by such injury of the parents’ freedom of decision.
( 2 ) Such person must only compensate for the expenses of the child’s maintenance if and insofar as such expenses lead to an exceptional burden for the parents and their standard of living is significantly reduced.
Helmut Koziol |
Basic Questions of Tort Law from a Germanic Perspective |
¶
338
¶
Helmut Koziol Basic Questions of Tort Law from a Germanic Perspective
Interference with liberty
§ 1322. ( 1 ) A person who interferes with the liberty of another must restore it ( § 1314 ) and compensate the pecuniary ( § 1315 ) and non-pecuniary damage ( § 1316 ).
( 2 ) If the deprivation of liberty stems from a non-public untrue communication, the tortfeasor is not liable if there was a justified interest in the communication and he proves that he did not know that it was untrue.
( 3 ) If the victim does not obtain his liberty and cannot enforce his claim, the tortfeasor must compensate those who were legally entitled to be maintained by the victim or for whom the victim would have paid the necessary maintenance, for the loss of this maintenance including future maintenance.
Defamation
§ 1323. ( 1 ) A person who is defamed or whose credit, earnings or advancement is impaired by libel or slander can seek the retraction of the utterance ( § 1314 ), the compensation of the pecuniary loss ( § 1315 ) and in the case of serious impairment of his standing, also the non-pecuniary loss ( § 1316 ).
( 2 ) The tortfeasor is not liable for the non-public distribution of untrue statements if there was a justified interest in the communication and he proves that he did not know they were untrue.
( 3 ) The tortfeasor is liable for the distribution of true facts only if these were not generally known, there was no justified interest in their communication and the facts originate from the private sphere or if the distribution was manifestly designed to impair another person seriously.
Damage to property and injury to an animal
§ 1324. ( 1 ) If the tortfeasor destroys a thing he must at least replace its market value ( § 1315 para. 4 ), in the case of intent also the value of special affection.
( 2 ) If a thing is damaged, the victim can also seek costs of repair exceeding the loss of its value ( § 1315 para. 2 ) insofar as a reasonable victim would have invested the costs, in particular because of a non-pecuniary interest in the thing.
( 3 ) The same shall apply for the killing or injuring of an animal.
Providing incorrect advice and misinformation
§ 1325. ( 1 ) A person who in a contractual relationship or in pre-contractual contact culpably gives his partner incorrect advice or misinformation is also liable for pure pecuniary damage. The same applies to declarations on which the grantee
Appendices Austrian Draft Proposal
Appendices |
Austrian Draft Proposal |
339 |
is recognisably dependent and which are directed at arousing the trust of the grantee; furthermore when the person making the declaration is aware that the information provided is wrong.
( 2 ) If incorrect advice or misinformation provided leads to an injury of personality rights, rights in rem or intellectual property rights, then the tortfeasor is liable regardless of whether a contractual relationship or pre-contractual contact exists, if it is discernible to him that the grantee trusts in the declaration and is thereby put at risk.
Section 2 |
Liability for roads |
|
Liability of the keeper of a road |
§ 1326. ( 1 ) |
If at fault, the keeper of a road is liable for damage that occurs as |
a result of a permitted use because of the inadequate state of the road. Any use which is not opposed by precept or prohibition or the type of road shall be deemed permitted. Whether the state of a road is inadequate depends on the users’ safety expectations justified by the type of road.
( 2 ) The keeper’s duty of care is reduced when the road serves above all the interest of the users. This is without prejudice to the contractual liability arising from special arrangement. Public authorities are liable as road keepers in the same way as an entrepreneur ( § 1302 ).
( 3 ) A path consists of the ground area designated for the traffic including the constructions belonging thereto.
Section 3 |
Liability for means of transportation |
|
Liability of the keeper |
§ 1327. ( 1 ) |
If through an accident in the operation of means of transportation, |
that is railway, cable car or motor vehicle, a person is killed or injured ( § 1320 ) or a thing is damaged, the keeper is liable under § 1304.
( 2 ) The keeper of a drag lift is liable for the damage which arises merely out of the condition of the drag track only on a fault basis.
§ 1328. ( 1 ) The keeper is not subject to strict liability if the injured or deceased person at the time of the accident was using the means of transportation ( § 1327 ) or was being transported therewith without the consent of the keeper.
Helmut Koziol Basic Questions of Tort Law from a Germanic Perspective
¶
340 Helmut Koziol |
Basic Questions of Tort Law from a Germanic Perspective |
|
|
|
|
( 2 ) For damage to transported goods, the keeper is only subject to strict liability if at the time of the accident they were being carried by a passenger as hand luggage or on the passenger’s person.
Liability in the case of illegal use of means of transportation
§ 1329. ( 1 ) A person who knowingly without the consent of the keeper, operates or takes part in the operation of means of transportation, is liable in place of the keeper. The keeper is liable solidarily with him if he or his auxiliaries who are engaged in the operation of the means of transportation made the illegal use possible through their fault.
( 2 ) If the keeper has employed the user for the operation of the means of transportation or handed it over to him, then the user is not liable in place of the keeper provided that the non-consensual use was minimal or justified by a particular cause.
Reduction or exclusion of liability
§ 1330. The liability can be reduced or excluded under the rule of § 1304 para. 4 ( unavoidable event ).
Exclusion of liability
§ 1331. The liability for causing death or injury of paying passengers can neither be excluded nor reduced in advance.
Section 4 |
Product liability |
|
Liability for defective products |
§ 1332. ( 1 ) |
If a person is killed or injured by a defect in a movable, physical thing |
( product ) ( § 1320 ) or if property separate from the product is damaged, the producer is liable. The same applies if the product is part of another movable thing or is attached to an immovable thing.
( 2 ) Damage to property is only to be compensated under this section insofar as it exceeds EUR 500, and if such property is of a type ordinarily intended for private use or consumption, and if it indeed was used by the injured person mainly for his own private use or consumption.
¶ |
Appendices |
Austrian Draft Proposal |
Appendices |
Austrian Draft Proposal |
341 |
( 3 ) The provisions of this section are not to be applied to damage caused by a nuclear event that is covered by a treaty ratified by the member states of the Treaty on the European Economic Area.
Producer
§ 1333. The producer is the manufacturer of the product, or the person who 1. produced any raw material or a component part of the product,
2. presents himself as the producer by the putting of his name, his trade mark or other distinguishing feature on the product,
3. imports the product into the European Economic Area for sale, hire, leasing or any form of distribution in the course of his business ( importer ) or 4. supplied the product if the producer or importer cannot be ascertained and unless he informs the injured person, within a reasonable time, of the identity of the producer or of the person who supplied him with the
product, or, in case of an imported product, of the importer.
Defectiveness
§ 1334. ( 1 ) A product is defective when it does not provide the safety which a person is entitled to expect, taking all circumstances into account, including:
1. the presentation of the product,
2. the use to which it could reasonably be expected that the product would be put, and
3. the time when the product was put into circulation,
( 2 ) A product shall not be considered defective for the sole reason that a better product is subsequently put into circulation.
Limitation of liability
§ 1335. ( 1 ) The producer shall not be liable under this section if he proves
1. that the defect is due to compliance of the product with mandatory regulations issued by the public authorities,
2. that he did not put the product into circulation; or that the product was neither manufactured by him for sale or any form of distribution for economic purpose nor manufactured or distributed by him in the course of his business,
3. that, having regard to the circumstances, it is probable that the defect which caused the damage did not exist at the time when the product was put into circulation by him or that this defect came into being afterwards,
Helmut Koziol |
Basic Questions of Tort Law from a Germanic Perspective |
¶
342 |
Helmut Koziol |
Basic Questions of Tort Law from a Germanic Perspective |
4. that the state of scientific and technical knowledge at the time when he put the product into circulation was not such as to enable the existence of the defect to be discovered, or
5. in the case of a manufacturer of a component, that the defect is attributable to the design of the product in which the component has been fitted or to the instructions given by the manufacturer of the product.
( 2 ) Liability under this section is extinguished, if not time-barred earlier, upon the expiry of a period of 10 years from the date on which the producer put into circulation the actual product which caused the damage, unless the injured person has in the meantime instituted proceedings against the producer.
Exclusion of liability
§ 1336. The liability under this section cannot be excluded in advance.
Section 5 Environmental liability
Liability for environmental damage
§ 1337. A person is liable for a source of high danger ( § 1304 ) if he operates a facility or engages in an activity which involves the risk of frequent or serious environmental damage. In the same way, a person who operates a facility or engages in an activity for which the risk for the environment obviously cannot be assessed shall be liable for serious environmental damage.
Presumed causation
§ 1338. If, according to the circumstances of the case in point, in particular the type of the damage, time and place of the occurrence of the damage, the operating procedure, the equipment used, the type and concentration of the substances used and the meteorological conditions, a facility or activity which carries a risk for the environment is likely to cause the damage, it will be assumed that it did cause the damage. This assumption is rebutted if the keeper proves that there is a preponderant probability that his facility or activity did not cause the damage. In such a case, the damage can be apportioned under § 1294 para. 2.
Environmental damage
§ 1339. If damage to property at the same time constitutes an impairment of the environment, the importance of the damaged or destroyed thing for the envi-
¶ |
Appendices |
Austrian Draft Proposal |
Appendices |
Austrian Draft Proposal |
343 |
ronment is to find appropriate consideration when assessing the claim for restoration in kind ( § 1314 ) or compensation for the amount of money used for restoration ( § 1315 para. 2 ).
…
Prescription
§ 1489. ( 1 ) Claims for damages are time-barred three years after knowledge or manifestness of the damage and the tortfeasor. If the victim does not gain knowledge of the damage or the identity of the tortfeasor, the period of limitation is 30 years, in the case of pure pecuniary damage 10 years. If the damage resulted from one or more criminal actions that could only be committed intentionally and that are punishable by more than one year imprisonment, the claims for damages expire in any case only when thirty years have passed after the occurrence of the damage.
( 2 ) After ten years since the occurrence of the damage, the victim – except in cases of personal injury – must prove all requirements of the claim.
Helmut Koziol |
Basic Questions of Tort Law from a Germanic Perspective |
¶
345
European Group on Tort Law
Principles of
European Tort Law
As of October 16, 2004
TITLE I. |
Basic Norm |
Chapter 1. |
Basic Norm |
Art. 1 : 101. |
Basic norm |
( 1 ) A person to whom damage to another is legally attributed is liable to compensate that damage.
( 2 ) Damage may be attributed in particular to the person a ) whose conduct constituting fault has caused it; or
b ) whose abnormally dangerous activity has caused it; or
c ) whose auxiliary has caused it within the scope of his functions.
TITLE II. General Conditions of Liability
Chapter 2. Damage
Art. 2 : 101. |
Recoverable damage |
Damage requires material or immaterial harm to a legally protected interest.
Art. 2 : 102. |
Protected interests |
( 1 ) The scope of protection of an interest depends on its nature; the higher its value, the precision of its definition and its obviousness, the more extensive is its protection.
( 2 ) Life, bodily or mental integrity, human dignity and liberty enjoy the most extensive protection.
Helmut Koziol |
Basic Questions of Tort Law from a Germanic Perspective |
¶
346 Helmut Koziol |
Basic Questions of Tort Law from a Germanic Perspective |
|
|
|
|
( 3 ) Extensive protection is granted to property rights, including those in intangible property.
( 4 ) Protection of pure economic interests or contractual relationships may be more limited in scope. In such cases, due regard must be had especially to the proximity between the actor and the endangered person, or to the fact that the actor is aware of the fact that he will cause damage even though his interests are necessarily valued lower than those of the victim.
( 5 ) The scope of protection may also be affected by the nature of liability, so that an interest may receive more extensive protection against intentional harm than in other cases.
( 6 ) In determining the scope of protection, the interests of the actor, especially in liberty of action and in exercising his rights, as well as public interests also have to be taken into consideration.
Art. 2 : 103. |
Legitimacy of damage |
Losses relating to activities or sources which are regarded as illegitimate cannot be recovered.
Art. 2 : 104. |
Preventive expenses |
Expenses incurred to prevent threatened damage amount to recoverable damage in so far as reasonably incurred.
Art. 2 : 105. |
Proof of damage |
Damage must be proved according to normal procedural standards. The court may estimate the extent of damage where proof of the exact amount would be too difficult or too costly.
Chapter 3. |
Causation |
Section 1. |
Conditio sine qua non and qualifications |
Art. 3 : 101. |
Conditio sine qua non |
An activity or conduct ( hereafter: activity ) is a cause of the victim’s damage if, in the absence of the activity, the damage would not have occurred.
Art. 3 : 102. |
Concurrent causes |
In case of multiple activities, where each of them alone would have caused the damage at the same time, each activity is regarded as a cause of the victim’s damage.
¶ |
Appendices |
Principles of European Tort Law |