Экзамен зачет учебный год 2023 / Koziol_BasicQuestions_Germanic

at least against certain interferences 52. The comparison can even be extended: the reparative injunction requires a still ongoing interference so that the application for the removal of the source of interference is simultaneously aimed at preventing the future interference that would otherwise threaten 53. Frequently, however, the removal of the source of interference will require active action on the part of the interferer, although – as in general – the distinction between action and omission is not an easy one. The fact that in the case of ongoing interference, the exact relation to preventive injunctions is correspondingly difficult because in this case the prevention of future interferences requires an active action, namely the removal of the source of interference 54, would not seem problematic from a substantive law point of view given the popularly advocated identity of the requirements and is not of any further significance for the relationship to claims for damages at issue here.

The issue of distinction does, however, draw attention to a circumstance that 2 / 18 might speak against the equivalence of the requirements for reparative injunc-

tions and those for preventive injunctions and in favour of a convergence with those for compensation claims: the reparative injunction can obligate the interferer to actively do something, namely remove the source of interference and thus provides for a more serious legal consequence than a preventive injunction. Our legal systems issue orders to actively do something less frequently than to cease doing something, the reason being that it seems more reasonable to order someone to cease doing something particular in order to avoid creating damage than to order him to perform some particular action in order to avoid damage. In observing a prohibition, the addressees of such still have several conduct options open; this is not the case if they are obligated to perform particular actions 55. Since reparative injunctions are directed at having a certain action ordered, namely the removal of the source of the interference, it would seem justified that this claim is subject to stricter requirements than a preventive injunction, which is merely directed at the prohibition of certain behaviour, but leaves all other behavioural options open to the respondent.

52On this Fritzsche, Unterlassungsanspruch und Unterlassungsklage ( 2000 ) 41 f; Karollus, ÖBA 1991, 166 ff with further references.

53Cf on this also E. Wagner, Gesetzliche Unterlassungsansprüche im Zivilrecht ( 2006 ) 469 ff; Lepeska, Der verschuldensunabhängige Beseitigungsanspruch nach dem ABGB als Instrument des Umweltschutzes, RdU 2000, 97 ff; idem, Der negatorische Beseitigungsanspruch im System des privatrechtlichen Eigentumsschutzes ( 2000 ) 36 ff, who thus also wants to take as a basis a uniform injunction without making a difference between preventive and reparative » negatorial cease and desist action «.

54Cf on this Fritzsche, Unterlassungsanspruch 202 ff; E. Wagner, Unterlassungsansprüche 233 ff. Fundamentally for the distinction between reparative and preventive injunctions see Henckel, AcP ( 1974 ) 99 ff.

55Cf Deutsch, Haftungsrecht2 no 108.

2 / 19 Furthermore, in the case of a reparative injunction – and this is significant in the context of the issues in focus here – the legal consequence also presents a problem, namely the distinction between the removal of the source of interference and restitution in kind under the law of damages. Wilburg 56 outlines the distinction as follows: » While the claim for damages is intended to compensate a disadvantage in the assets of the injured party, a reparative injunction is directed against the damaging state within the injured party’s sphere. In one instance the subject of the claim is the damage, in the other the source of damage.«

However, this formula cannot, for example, definitively answer the question of whether the land-owner, into whose land oil has seeped from neighbouring land, can still bring a claim for a reparative injunction or only for damages. Is the removal of the source of damage at issue here or would it already constitute the rectification of the damage ? According to Jabornegg / Strasser 57 there is only a right to a reparative injunction so long and to the extent to which the sphere of the disturber can be individualised practically and legally in relation to one’s own thing 58. If this is not possible but a state hampering and disadvantaging to the owner exists, then this can no longer be seen as an interference with property but at most as the consequence of interference, ie as damage that can only be compensated according to the principles of the law of damages. According to Jabornegg / Strasser, therefore, in the example with the oil, only a claim for damages could come into question; others,59 however, would still grant a reparative injunction, but then would hardly be able to draw a clear line between this and claims for damages. Proceeding from the main principle that the reparative injunction is directed at preventing future impairments, whereas the claim for damages is directed at compensating damage that has already been sustained 60, it would be possible, however, to take as an additional premise the question of whether the infliction of further damage must be feared and such should be prevented 61, or whether the only basis is the damage already sustained and its complete compensation.

56Elemente, 263. Cf also Baur, Der Beseitigungsanspruch nach § 1004 BGB, AcP 160 ( 1961 ) 489; Baldus in MünchKomm, BGB VI5 § 1004 no 103; Wilhelmi, Risikoschutz 56 ff, 73 f.

57Jabornegg / Strasser, Nachbarrechtliche Ansprüche 150 ff. Also Gursky in Staudinger, BGB2006 § 1004 no 101; Picker, Der negatorische Beseitigungsanspruch ( 1972 ) 32, 88; idem, Der privat­ rechtliche Rechtsschutz gegen baurechtswidrige Bauten als Beispiel für die Realisierung von » Schutzgesetzen «, AcP 176 ( 1976 ) 50.

58E. Wagner, Unterlassungsansprüche 306 ff, on the other hand, considers the fact that this can be individualised should only be used as an indication.

59Baur, AcP 160 ( 1961 ) 479; Mühl in Soergel, BGB X12 § 1004 no 4.

60Wilhelmi, Risikoschutz 56 ff, 71 ff.

61See Wilhelmi, Risikoschutz 73 f.

suasive distinction between the impairments decisive in respect of a reparative injunction and the disadvantages to be assessed under the law of damages 63 by taking a fundamentally different approach. According to him,64 the aim of the actio negatoria ( reparative injunction ) is the preservation of freedom of property or some other protected legal right or interest. He says the prerequisite is thus solely the infringement of the legal integrity, the factual usurpation of the right of a third party. The negative protection thus exists if and because the exercise of the owner’s powers are legally hindered, and because in effect the protected right is availed of by a third party. Hence, impairment and damage are two infringements of an intrinsically different nature; terminological overlaps and transitions are not possible between them, according to him: the impairment limits the legal capacity of the party disturbed, the damage on the other hand merely gives rise to a limitation of the actual capability of the victim. The reparative injunction thus always requires an interference with third-party rights.

Picker reaches the conclusion that an impairment only exists as long as the interferer impacts the third-party right. Therefore, it ends when the disturber stops the nuisance, when the disturbing thing is combined with the property affected to become a main component of such or when the disturber gives up his right to the disturbing thing 65. Proceeding from the function of a reparative injunction as providing elementary and thus essential protection, Picker 66 concludes that the negating liability is » without precondition «: it requires neither fault nor any other subjective liability grounds nor even any causal behaviour on the part of the disturber; therefore, property that has ended up on land owned by a third party must also be removed even if it has ended up there through third parties or natural catastrophes or the party disturbed has taken action against a completely » innocent « legal successor. According to Picker, the fact that the costs of the reparation would be imposed upon the » disturber « by law should not distract from the fact that this is a rule made solely for reasons of expedience.

62See Picker, Beseitigungsanspruch; idem, Zur Beseitigungshaftung nach § 1004 BGB – eine Apologie – zugleich ein Beitrag zur bürgerlich-rechtlichen Haftungsdogmatik, Gernhuber-FS ( 1993 ) 315.

63Picker, Beseitigungsanspruch 20 ff, 85 ff.

64Picker, Beseitigungsanspruch 49 ff; idem, Gernhuber-FS 331 ff. Following this line Kahl, Negatorischer Kern und restitutorisches Beiwerk in der Praxis des Beseitigungsnaspruchs, Picker-FS ( 2010 ) 391 ff; Katzenstein, AcP 211 ( 2011 ) 81 ff.

65On the other hand, waiving the position that usurps the right can in its own right provide the basis for liability in respect of damage, according to him.

66Picker, Beseitigungsanspruch 104 ff; idem, Gernhuber-FS 340 f.

2 / 21 Picker’s approach nonetheless reveals decisive weaknesses 67 that will not be discussed in any more detail here 68. Only one point will be addressed, which seems significant precisely in respect of the relationship to damages: Picker emphasises that the disturbed party’s reparative injunction does not require any further preconditions because it is not about shifting a disadvantage, thus this approach can only be persuasive insofar as no costs accrue to the disturber, but on the other hand certainly no longer if the disturber must bear the often very substantial reparation costs 69. With his fundamental concept, Picker could consequently only argue that the disturbed party has the authority to interfere in the rights of the disturber and thus to end the usurpation of the right, hence that the disturber is merely under a duty to tolerate in this respect 70. This idea is clearly also behind Picker’s opinion that the disturber could end the impairment by giving up his property.

As soon, however, as the issue is reparation by means of action that must be undertaken and the expense of reparation, the question of who is to bear the disadvantage is unavoidable, and thus his claim that terminological overlaps and transitions between damage and impairment are not possible when his approach is applied proves no longer tenable: the solution advocated by Picker also concerns after all the problem of who is to bear the damage. Therefore, it must be emphasised that the question of who is to bear the costs cannot be justified merely by expediency considerations but only by criteria for liability that are similar to those of the law of damages. Ultimately, the consideration of rei vindicatio, as rightly considered important by Picker, is an argument against the idea that a duty to repair that is connected with costs always arises like such without prerequisites: In the case of rei vindicatio, the party in possession is only required – precisely because of the lack of prerequisites attached – to make the thing available to be picked up 71 and by no means to expend costs, in order to make it possible once again for the owner to exercise full rights.

2 / 22 The discussion shows that in particular the » conditionless « reparative injunction advocated by Picker is only appropriate and can only fit within the overall system of legal consequences insofar as no costs of reparation are imposed upon the disturber. This means ultimately that the » conditionless « claim extends only

67Cf the book review by Baur, AcP 175 ( 1975 ) 177 ff, and the criticism by Jabornegg / Strasser, Nachbarrechtliche Ansprüche 97 ff, as well as Baldus in MünchKomm, BGB VI5 § 1004 no 33 ff and Wilhelmi, Risikoschutz 48 ff.

68See also my comments in Canaris-FS ( 2007 ) 645 ff.

69For example, one thinks of the case where someone steals a lorry but the joyride ends in a building pit belonging to the disturbed party.

70On mere obligation to tolerate when there are no grounds for liability or if such are minor, see also already Wilburg, Elemente 261; Baur, AcP 160 ( 1961 ) 475, 477, 479.

71Cf BGH in BGHZ 104, 304; Fritzsche in Bamberger / Roth, BGB II2 § 985 no 26.

so far as that the disturber is obligated to tolerate the removal of the source of the disturbance by the disturbed party 72, so that the disturber can only be called upon to decline from resisting 73 and, thus, this is nothing more than a subset of the preventive injunction. This accords with those views 74 that already considered that a disturber should merely be obligated to tolerate the removal of the source of disturbance in the case of merely minor grounds for liability. However, even this right of the disturbed party is not completely » conditionless « either: it is necessary after all – as in the case of other preventive injunctions – that there be an impairment, ie a third-party’s protected good must have been availed of 75, thus there must have been an infringement of the allocation of goods under the law 76. Insofar it is possible to speak of the factual elements of an offence and harmony with the rules on preventive injunctions can be restored 77. Furthermore, the causation must at least be through the sphere of the disturber, which also includes things and installations.

Insofar, however, as the disturber is to be obliged to actively remove the interference using efforts, time and money or other assets, there is also the question of how the – sometimes very heavy – costs are to be borne. As shown especially in the law of damages, special reasons are required before someone who has incurred a disadvantage can shift this onto another. If an owner is impaired in the exercise of his right, then the disadvantage has arisen within his sphere and there must be sufficient grounds for liability before he can require that another bears the costs. Hence, the question here is also who is closer to the damage 78. Since it undisputedly concerns the question of who is to bear the disadvantage and thus a problem that

72The disturber can also comply with this in that he relinquishes the disturbing thing and thus his property no longer stands in the way of the disturbed party removing the disturbance. If merely the toleration of the removal is at issue, then – but only then – may it be agreed, argues Picker, that the disturber can end his negatorial liability by giving up his property ( cf Picker, Zur Beseitigungshaftung nach § 1004 BGB – eine Apologie – zugleich ein Beitrag zur bürgerlichrechtlichen Haftungsdogmatik, Gernhuber-FS [ 1993 ] 337 with further references ); Katzenstein, AcP 211 ( 2011 ) 79 f and 93 ff. This limitation of the relinquishment solution would also seem to fit in with the line taken by Larenz / Canaris, Schuldrecht II / 213 § 86 III 3 d and that of Jabornegg / Strasser, Nachbarrechtliche Ansprüche 145.

73On this E. Wagner, Gesetzliche Unterlassungsansprüche im Zivilrecht ( 2006 ) 13 f with further references; Katzenstein, AcP 211 ( 2011 ) 92.

74Thus, already Wilburg, Elemente 261; Baur, AcP 160 ( 1961 ) 475, 477, 479.

75As Picker, Gernhuber-FS 334, highlights, this concerns a principle that also provides a basis for the law on unjust enrichment. On the significance of availing of a third-party good as an element of liability under the law of damages cf already Wilburg, Elemente 29 ff.

76If no absolute protection is foreseen, it depends on whether the conduct violates a duty; cf Baur, AcP 160 ( 1961 ) 483 f. G. Wagner, Medicus-FS ( 2009 ) 606 f, however, now advocates that a breach of duty of care always be required without differentiation for the reparative injunction.

77There is a difference to fault-based liability under the law of damages because it is not based on violation of a duty in relation to conduct. Baur, AcP 160 ( 1961 ) 471, 482 on the other hand, proceeds on the basis that the concept of unlawfulness in § 1004 BGB and in § 823 BGB must be the same.

78Cf Larenz / Canaris, Schuldrecht II / 213 § 86 II 2 b.

is addressed above all by the law of damages, those opinions 79, according to which reparative injunctions are subject to completely different rules, are not particularly persuasive. It is much more in line with the other values in our legal system when Canaris 80 highlights the connections with the law of damages in this respect.

2 / 23 However, it must be taken into account that reparative injunctions are primarily directed at prevention and not at compensation and that the special interest of the legal system in the avoidance of damage speaks for a lowering of the prerequisites 81. Furthermore, it must be taken into consideration that the legal consequences are generally far less comprehensive than in the case of claims for damages: the disturber only has to bear the costs for the removal of the source of disturbance but is quite clearly not liable for the often very extensive consequential damage nor does he have to restore the previous state of affairs. Since the burden imposed even by an action directed at active removal, while greater than that imposed by a preventive injunction, is nonetheless typically less onerous than that imposed by a claim for damages, it would seem fitting that in this case too the prerequisites be set as something between those for actions for preventive injunctions and damages 82. Baur 83 therefore considers it rightly impermissible to impose general strict liability upon the owner, ie to expose him to a reparative injunction even when the disturbance cannot be traced back to his actions; nonetheless even when the actions of the disturber fulfil the mere factual elements of disturbance this is not sufficient on its own to give rise to liability for actions, ie does not automatically constitute an interference with a protected position. On the other hand, and in contrast to the law of damages, fault is not required 84. Instead – as will fall in line with the prevailing view 85 – objective negligence is required and also suffices 86, so that in particular the disturber’s capacity to commit a delict is not a requirement 87.

79Cf Picker, Gernhuber-FS 332 ff; cf also Jabornegg / Strasser, Nachbarrechtliche Ansprüche 134 f, 144 f; Katzenstein, AcP 211 ( 2011 ) 74 ff.

80Larenz / Canaris, Schuldrecht II / 213 § 86 I.

81This is emphasised by Wilhelmi, Risikoschutz 60 f, 352.

82Such aspects are not considered at all by Katzenstein, AcP 211 ( 2011 ) 73 f.

83Baur, AcP 160 ( 1961 ) 478.

84See for instance Larenz / Canaris, Schuldrecht II / 213 § 86 I 1 a and V 3 b; Baldus in MünchKomm, BGB VI5 § 1004 no 89.

85Larenz / Canaris, Schuldrecht II / 213 § 86 I 1 b and IV with further references.

86As in the case with preventive injunctions, it is debated in Austria whether a reparative injunction directed against the tenant on the basis of impairment of the lien requires fault; in favour Hofmann in Rummel, ABGB I3 § 458 no 6; OGH 8 Ob 254 / 99g in JBl 2000, 508; contra Rummel in Rummel, ABGB I3 § 859 no 5; an up-to-date overview of the prevailing state of opinion is offered by Hinteregger in Schwimann, ABGB II3 § 458 no 6. If it is advocated here that due to lack of overtness of the lien from the perspective of the tenant, his objective negligence – but not fault – must be required, then this is accordingly in line with the general prerequisites in relation to reparative injunctions.

87Thus also Baldus in MünchKomm, BGB VI5 § 1004 no 89.

recognised, namely one directed at an obligation to tolerate removal and the other directed at the obligation to actively remove the disturbance 88, and these require different grounds for liability. It is true that the undeniable difficulties in drawing a distinction between impairment and damage are not eliminated by this approach. However, they do seem essentially manageable; in particular the abovementioned arguments of Jabornegg / Strasser, based on whether it is possible to individualise, are persuasive in my opinion 89. Moreover, the boundaries may be somewhat relaxed and thus defused: if there are more weighty grounds for liability, for example a more serious violation of a duty 90, then the impairment can extend further and thus the claim may with good reason be approximated to the claim for damages; in the case of minor grounds for liability, on the other hand, the boundaries should be drawn more restrictively.

VI.  Unjust enrichment by interference

A. The relationship between claims for unjust enrichment and claims for damages

88Jabornegg / Strasser, Nachbarrechtliche Ansprüche 67 f, on the other hand, clearly assume that according to the law today only reparative injunctions directed at actual action exist.

89Jabornegg / Strasser, Nachbarrechtliche Ansprüche 131 ff, 150 ff.

90On how this can be graded see Wilburg, Elemente 48; Reischauer in Rummel, ABGB II / 13 § 1304 no 5; Karollus, Schutzgesetzverletzung 212 ff.

91F. Bydlinski, System und Prinzipien 235.

92Wilburg, Ungerechtfertigte Bereicherung 27 ff; Larenz / Canaris, Schuldrecht II / 213 § 69 I 1c; F. Bydlinski, System und Prinzipien 242 f.

93This harmony would also seem to apply in relation to goods that cannot be paid for; see Koziol, Bereicherungsansprüche bei Eingriffen in nicht entgeltsfähige Güter ? Wiegand-FS ( 2005 ) 449.

the protected interests of another person.94 Apart from this, they must nonetheless be distinguished from each other 95: the law of damages is directed at compensating the damage sustained by the impaired party; the law on unjust enrichment at the disgorgement of the unjust enrichment 96 gained by the interferer 97. Accordingly, it is also recognised today that claims for unjust enrichment do not require any damage on the part of the person at whose expense the enrichment was gained 98. The protection under the law of unjust enrichment can thus be applied in cases when the law of damages cannot be drawn on due to the lack of any disadvantage suffered.

2 / 27 There is also consensus that the prerequisites for the two types of claim are different 99: claims for unjust enrichment do not depend on fault or breach of a duty by the party unjustly enriched; claims for damages on the other hand do require fault on the side of the party liable for damages, or equivalent grounds for liability to this party, for example a special risk posed by something within his sphere of responsibility. This is in principle justifiable on the basis of the argument that compensating the disadvantage suffered by a third party with one’s own resources is a considerably more onerous legal consequence than disgorging an advantage gained in an impermissible fashion. Accordingly, claims for damages are subject to much stricter prerequisites than claims for unjust enrichment 100.

B.Blurred boundaries between claims for unjust enrichment and claims for damages

2 / 28 The boundary between claims for unjust enrichment and for damages is, however, by no means so clearly drawn as it might seem based on the overview above, either with respect to the prerequisites for the claim or the legal consequences.

94Cf Larenz / Canaris, Schuldrecht II / 213 § 69 I 1d; Koziol, Rechtswidrigkeit, bewegliches System und Rechtsangleichung, JBl 1998, 624; Jansen, The Concept of Non-Contractual Obligations: Rethinking the Divisions of Tort, Unjustified Enrichment, and Contract Law, JETL 2010, 17 f.

95F. Bydlinski, System und Prinzipien 185 ff, 233 ff; Böger, System der vorteilsorientierten Haftung im Vertrag ( 2009 ) 50 ff.

96Wilburg, Ungerechtfertigte Bereicherung 5 f, 97 ff; Larenz / Canaris, Schuldrecht II / 213 § 67 I 1;

F.Bydlinski, System und Prinzipien 233; Koziol in KBB, ABGB3 § 1041 no 4.

97If the loss of the disgorgement is not taken into consideration as relief, there is nevertheless a deviation from this basic principle. This will be looked at in brief below.

98Wilburg, Ungerechtfertigte Bereicherung 97 ff; Larenz / Canaris, Schuldrecht II / 213 § 67 I 1 b;

F.Bydlinski in Klang, ABGB IV / 22, 529 f; Reuter / Martinek, Ungerechtfertigte Bereicherung ( 1983 ) § 14 I 1; Apathy, Der Verwendungsanspruch ( 1988 ) 46; Rummel in Rummel, ABGB I3 § 1041 no 5.

99Cf Larenz / Canaris, Schuldrecht II / 213 § 69 I 1 b and c; F. Bydlinski in Klang, ABGB IV / 22, 530; Apathy in Schwimann, ABGB IV3 § 1041 no 2; cf also Reuter / Martinek, Ungerechtfertigte Bereicherung § 7 I 1.

100Koziol in KBB, ABGB3 § 1041 no 4; idem, Die Bereicherung des Schädigers als schadenersatzrechtliches Zurechnungselement ? F. Bydlinski-FS ( 2002 ) 175 ff.

enrichment to liability for damages, for example, in the liability of an owner who knows of the duty to return something due to deficiencies in a commercial transaction and thus knows of the seller’s claim in respect of unjust enrichment and carelessly destroys the item.

Nor is it possible to miss the fact that the stricter application of liability rules under the law of unjust enrichment 104 in the case of dishonesty on the part of the enrichee takes into account grounds for liability that are at home in the law of tort. If in the case of dishonesty, the basis for the claim is no longer the specific, still existing enrichment, in other words the loss of the enrichment is not taken into account, this application can no longer be justified solely on the basis of the disgorgement of the advantage obtained, rather an additional allocation of risk is involved 105. Thus, in the case of such stricter liability, behaviour is relevant as a criterion for liability; Canaris 106 distinguishes between liability based on assets and independent of liability and behaviour-related, imputation-based liability under the law of unjust enrichment. As the latter leads to the interferer not only having to surrender any still existing advantage but also being liable if the advantage has since been lost, ie possibly being liable to cover the risk at his own expense, it is fitting in this context to require imputability 107. If in addition to the breach of duty

101On this Wilburg, Ungerechtfertigte Bereicherung 27 ff; Larenz / Canaris, Schuldrecht II / 213 § 69 I 1 b; F. Bydlinski, System und Prinzipien 240 ff; Reuter / Martinek, Ungerechtfertigte Bereicherung § 7 I.

102Wilburg, Ungerechtfertigte Bereicherung 44 ff; Larenz / Canaris, Schuldrecht II / 213 § 69 I 1c; F. Bydlinski, System und Prinzipien 243; Koziol, Der Verwendungsanspruch bei Ausnützung fremder Kenntnisse und schöpferischer Leistungen, JBl 1978, 239. Contra, for example, Reuter / Martinek, Ungerechtfertigte Bereicherung § 7 III d.

103Larenz / Canaris, Schuldrecht II / 213 § 67 I 1 c.

104On this see for German and Austrian law F. Bydlinski, System und Prinzipien 279 ff.

105See on this F. Bydlinski, System und Prinzipien 282 ff.

106Larenz / Canaris, Schuldrecht II / 213 § 71 III and § 73.

107Thus, Larenz / Canaris, Schuldrecht II / 213 § 71 III 1 a and § 73 II 2 a.

constituted by his conduct, the interferer is also at fault 108, then all prerequisites for a claim for damages have also been satisfied.

2 / 31 Without having regard to the dishonesty and independent of the attainment of any advantage, such party as deliberately decided to use the asset in question should also be liable to the extent of the objective value of the third-party good of which he availed 109. The deliberate disposition to utilise a third-party good as such does not justify a duty to compensate it is true, but it does justify the allocation of risks in case the undertaking turns out to be a failure.

2 / 32 The fluid transition between the laws on unjust enrichment and damages is also revealed in the circumstance that, vice versa, the unjustified attainment of an advantage can also be of significance in relation to liability under the law of tort. This will be looked at again below ( no 2 / 54 and no 6 / 171 ff ).

C.The overlap between the laws on unjust enrichment and damages 110

1.The problem area at issue

2 / 33 This concerns such cases as when the enrichee obtained his advantage by destroying a third-party interest: eg, entrepreneur B injures his competitor V so seriously that the latter becomes unable to work and cannot continue to operate his business. Perpetrator B can increase his sales and demand higher prices due to his new monopoly position. Similarly, there are cases in which the machines of a competitor are damaged or destroyed. However, examples can also be found in completely different fields: the media entrepreneur B publishes a fictional interview with famous personality V, offered to him by a journalist, without checking this adequately in advance; this publication increases sales of B’s newspaper for some time quite dramatically.

108If ( as predominantly in German law ) an objective standard of fault is advocated, then in case of objective carelessness and the perpetrator’s mental capacity fault would always be given. In Austrian law, which also considers the subjective knowledge and abilities of the perpetrator according to the prevailing view, on the other hand, the requirement of fault would extend beyond the criteria for liability for unjust enrichment. On the different concepts of fault see Koziol, MJ 1998, 111.

109Wilburg, Zusammenspiel der Kräfte im Aufbau des Schuldrechts, AcP 163 ( 1964 ) 356 ff; F. Bydlinski, System und Prinzipien 285 ff; Koziol in KBB, ABGB3 § 1041 no 16.

110On this in more detail Koziol, Gewinnherausgabe bei sorgfaltswidriger Verletzung geschützter Güter, Medicus-FS ( 2009 ) 237 ff.