Экзамен зачет учебный год 2023 / Koziol_BasicQuestions_Germanic

tages of the insurance-based approach. Adjustment of compensation after considering misconduct of the victim or generally causation arising in the sphere of the victim comes to mind in particular, as well as allowing the insurer recourse against tortfeasors who act wrongfully or at least who are responsible in the case of injury to third parties 30. However, the insurance-based approach would then lose substantial advantages: before compensating the victim it would be necessary to examine any contributory responsibility or possible causation by something within his sphere of risk, so that rapid compensation would no longer be possible. This is seen clearly in the medical field, when compensation is tied to the causation of the health problem by medical malpractice and the general life risk is excluded from the insurance cover 31. Moreover, the introduction of rights of recourse would mean that the insurer has to bear the costs of the process. As the questions of the contributory responsibility of the victim and rights of recourse would properly have to be decided in the main according to present-day tort law rules, the only difference left as compared to present-day tort law solutions would

27This is also the case in New Zealand, see Skegg in: Dute / Faure / Koziol, No-Fault Compensation 298; Rohde, Haftung und Kompensation 280 ff. Cf on this also Stapleton, Disease and the Compensation Debate ( 1986 ) 142 ff. This is not adequately taken into account by Boccara, Medical Malpractice, in: Faure, Tort Law 362 ff or by Fiore in: Faure, Tort Law 408.

28See on Swedish law Dufwa, The Swedish Model of Personal Injury Compensation Law Reconsidered, Liber amicorum for Helmut Koziol ( 2000 ) 114 ff.

29F. Bydlinski, System und Prinzipien 108 f, 111.

30Cf on this Krejci, Grundsatzfragen des Haftpflichtund Regreßsystems im Recht der sozialen Sicherheit, in: Reformen des Rechts, FS der Rechtswissenschaftlichen Fakultät der Universität Graz ( 1979 ) 435.

31On this Dufwa, Liber amicorum for Helmut Koziol 109 ff. See also Weyers, Empfiehlt es sich, im Interesse der Patienten und Ärzte ergänzende Regelungen für das ärztliche Vertrags- ( Standes- ) und Haftungsrecht einzuführen ? Gutachten für den 52. Deutschen Juristentag I / A ( 1978 ) 98 ff. Boccara in: Faure, Tort Law 362, does not take this question into account adequately; neither does Fiore in: Faure, Tort Law 407 ff, where he always takes » automatic « compensation via insurance as his basis.

be that the insurer is involved as an intermediary; while this insurer does offer the victim security in respect of the compensation it also gives rise to additional costs 32.

1 / 14 Overall then, Rhode 33 is right when he compares the German and New Zealand approaches and concludes: » The Accident Compensation Scheme is a typical example of how it is not possible to achieve rapid, uncomplicated handling of damage cases and fair and full compensation for damage at the same time.«

1 / 15 Hence, any social ( accident ) insurance system should not do away with tort law but merely complement it and – as is mainly the case today – only then provide for compensation awards when such are necessary to secure one’s livelihood. In this fashion, it should be limited to its function as a » social net «. This was the basis of the Swiss Draft for the overall revision of tort law as well as the EGTL’s work on PETL and also the Study Group on a European Civil Code, whose proposal contained a section on » Non-Contractual Liability Arising out of Damage Caused to Another ( PEL Liab Dam ) «, and finally also the working group set up by Federal Minister Böhmdorfer in Austria, who developed a proposal for the reform of Austrian tort law 34.

B. Economic considerations

1 / 16 In the course of the Swiss debate on reform, the financial advantages and disadvantages of replacing liability law with victims’ insurance was examined in detail. The conclusion was that the insurance-based approach would not entail any economic advantages 35. Hence, this does not constitute a ground for departing from the current system either.

32Cf on this Calabresi, The Costs of Accidents ( 1970 ) 28 f; Wantzen, Unternehmenshaftung und Enterprise Liability ( 2003 ) 124; Brüggemeier, Haftungsrecht 639.

33Haftung und Kompensation 393.

34See Koziol, Grundgedanken, Grundnorm, Schaden und geschützte Interessen, in: Griss / Kathrein / Koziol, Entwurf 24 ff.

35Bericht der Studienkommission für die Gesamtrevision des Haftpflichtrechts ( 1991 ) 6 ff.

III.  Strict limits and rigid norms or fluid transitions and elastic rules ?

A. Strict delimitation of the different bases for claims

similar devices, which in spite of the harmless sounding name are not directed at the compensation of damage, are implanted into tort law, meaning that while the conditions for their applicability are determined by tort rules, the actual legal consequences derive mainly from penal law, whereby the payment of the penalty is not made to the state as is usual under penal law but instead directly to the victim. The impermissibility of such an approach would seem manifest: in the established core areas, principles regarding the appropriate conditions for particular legal consequences have gradually developed over time. Thus, the legal consequences from one field, in this case the imposition of penalties, cannot simply be attached to the requirements of a different field of law, in this case tort.40 This is manifest with respect to punitive damages, despite the fact that the imposition of penalties is only considered permissible under special, far more specific, circumstances. Regard to the principle » nulla poena sine lege « suffices, whereby the penal law standards must fulfil the certainty requirement to a far greater degree than, for example, tort standards; furthermore special procedural and evidentiary rules to protect the accused have been developed and also the liability criteria, for instance fault, are significantly different in many ways. Above all, however, private law is imbued with the necessity of bilateral justification ( below no 2 / 59 ), so that it cannot be used to grant someone a right to payments for which there is no factual justification and such award would have to be seen as an unearned piece of luck 41.

If – though this would first have to be examined carefully – there was really a gap in protection from a preventive perspective that would be filled by awarding » punitive damages «, then the right approach would certainly not be to proceed with a very sketchy and purely conceptual jurisprudential ( begriffsjuristischer ) method, which untruthfully presents a penalty as damage compensation and accordingly ties it to tort requirements. Rather, it should first be examined which

40See Englard, Punitive Damages – A Modern Conundrum of Ancient Origin, JETL 2012, 4 who writes that » It was only in relatively modern times that the combination of punishment and compensation was conceived to raise methodological and conceptual problems of mixing private suits with criminal law, or more generally private law with public law.«

41On the historical roots of the principle of full compensation and the prohibition of unjust enrichment see Jansen in HKK zum BGB II §§ 249 – 253, 255 no 17 f, 21, 61.

C. All - or - nothing principle ?

more detail under no 5 / 86 ff ). According to prevailing opinion, the judge must still decide which event was causal, even when the probability of causation by the event that generates liability is approximately the same as that of causation by chance, which must be accounted to the victim. Hence, he must decide whether to affirm or reject liability in the full amount. Stark 43 consequently asks the very justified question: » Is it not problematic simply to assume certainty when faced with an identified probability of, for example, between 25 % and 75 %, ie to completely reject liability or completely affirm it ? Is not injustice done to one of the parties when one acts as if one knows something that one does not in fact know ? « It must also be noted that even the ABGB does not follow the causation principle strictly, but in particular in cases of alternative causation recognises liability for potential causation in the case of greater concrete dangerousness of an event, in

43Stark, Die » perte d’une chance « im schweizerischen Recht, in: Guillod ( ed ), Neuere Entwicklungen im Haftpflichtrecht ( 1991 ) 101; Oftinger / Stark, Haftpflichtrecht I5 124 f.

D. Elastic rules

1 / 28 The dismantling of strict distinctions and contrasts which do not exist in reality and the departure from the all-or-nothing principle is compatible with the basic concept of a flexible system that can also offer the methodological tools to go down this path. The persuasive fundamental notion of the flexible system, which was developed by W. Wilburg 44 on a comparative law basis and further developed by B. Schilcher 45 and above all F. Bydlinski 46, is accordingly considered in this book.

This flexible system aims at including the evaluations of the relevant rule which provides the basis for application of the legal consequences and taking into account both the gradability of the criteria and also of the legal consequences. According to Wilburg’s ideas, in the process of decision-making all relevant factors must be identified and then taken into account in a flexible system. Whether liability is justified or not does not depend merely on the simple number of criteria met but also on their interaction. Moreover, the significance of the individual elements and their joint significance must be taken into account; thus the » comparative « nature of the elements is stressed. This means that liability may even be affirmed if one of the relevant factors is lacking or only present to a slight degree, if on the other hand the weight of the other factors is greater than usually required. This is highlighted by Wilburg 47: » If one element is particularly significant, then it may suffice by itself to justify liability for damage.« He continues on the advantages of this approach: » This system is capable of encompassing all imaginable cases and their special qualities. In contrast to previous principles, it is elastic and does not break like an object made of glass when the value judgement concerning the force of individual elements, such as the dangerousness of an enterprise, changes in the course of time. The addition of new aspects and

44 Elemente; idem, Bewegliches System; idem, Zusammenspiel der Kräfte im Aufbau des Schuld­ rechts, AcP 163 ( 1964 ) 346 ff. A short, instructive overview is provided by B.A. Koch, Wilburg’s Flexible System in a Nutshell, in: Koziol / B.C. Steininger, Yearbook 2001, 545 ff.

45 Schilcher, Schadensverteilung; idem, Neuordnung des österreichischen Schadenersatzrechts, Liber amicorum for Helmut Koziol ( 2000 ) 293 ff; idem, Der Regelfall als Verbindung von Tatbe­ standsmodell und Beweglichem System, Koziol-FS ( 2010 ) 853 ff.

46 F. Bydlinski, Juristische Methodenlehre und Rechtsbegriff2 ( 1991 ) 529 ff. 47 Bewegliches System 13 f.

tain, unclear, random and vaguely defined prohibitions, the fundamental condition formulated by the leading proponent of the flexible system, F. Bydlinski, shall be quoted here in conclusion 49: » Insofar as there are typical, clearly comprehensible facts, also as regards the consequences of a rule, the requirements of legal certainty and pragmatism, ie in this context predictable and simple application of law, and moreover also fairness and equality, support adherence to the system of fixed rules and prohibitions within the legislative system. Also in cases where legal certainty is one of the particular aims of a law, there will be no ( or at least very little ) room for › flexible ‹ enclaves. A basically flexible law on bills of exchange, real property law, procedural or punitive law is certainly impossible.«

Because of the complex nature of the problems and the diversity of the facts it is, however, not always possible to formulate fixed private law rules. The flexible

system can strike a balance between rigid prohibitions and vague blanket clauses: the judge’s disclosure of the decisive factors which must be taken into consideration will secure significant concretisation, the discretion of the judge is significantly limited and his decision rendered predictable; on the other hand however, targeted consideration of the diversity of the concrete circumstances in each case is made possible. The interaction of the different factors, which may be present to different degrees, is decisive in respect of the solution.

1 / 31 On the other hand, the view, often meant as a criticism, that the flexible system often promotes flexible solutions and is aimed at provisions that lead to a departure from the rigid all-or-nothing principle, eg in the case of alternative causation of an incident which would give rise to liability and of chance ( see no 5 / 86 ff ) is correct. However, this is nothing really new, as the already tried-and-tested and universally regarded as appropriate rule of contributory responsibility ( § 254 BGB; § 1304 ABGB ) has already led us away from archaic culpa-compensation and thus from the all-or-nothing principle. Apart from the fact that the abrupt swing from full to no compensation on the basis of often minor differences also leads to fairness problems, it must be taken into consideration as afore-mentioned that courts may well tend, whether consciously or subconsciously, to manipulate the requirements for liability, when they see no other alternative in the face of an either-or solution, in order to avoid a crassly inequitable result. Such manipulation without disclosure of the factor taken into consideration is certainly much more detrimental to legal certainty and predictability of decisions, than the adoption of a middle course, and the openly granted and defined discretion, which entails disclosure of reasoning.