Экзамен зачет учебный год 2023 / Koziol_BasicQuestions_Germanic

in the field of strict liability – the law of tort serves a deterrent function ( for more detail on all of this see below no 3 / 4 ff ). In Austria, the widespread understanding of the notion of the continuation of a right ( Rechtsfortsetzungsgedanke ) is based on this deterrent function ( on this see below no 3 / 8 ff ). According to this idea, the injured right or interest is continued in the victim’s claim for compensation: in lieu of the destroyed good, a claim worth the » ordinary value «, ie for the general market value, emerges against the injuring party. Thus, the notion of continuation of a right, by virtue of the fact that the injuring party must always compensate the market value even if the subjective damage is less, gives rise to a liability to compensate the objective value when something is destroyed and thus serves the aim of deterrence. Awarding compensation is nonetheless still based primarily on the notion of compensation for damage sustained.

Reference is had to the fact that the aim of deterrence – independently of the notion of compensation – is also pursued above all by criminal law; hence, the private law measures should not be viewed in isolation. This must be borne in mind, for example, when supporters of the economic analysis of law 155 forcefully complain that killing a person does not involve any consequences under tort law 156

152See on this Canaris, Grundstrukturen des deutschen Deliktsrechts, VersR 2005, 577 ff with additional references.

153On this Schermaier in HKK zum BGB II § 275 no 56 ff.

154Treitel in Burrows ( ed ), English Private Law2 ( 2007 ) 771 f; cf also R. Halson in Frumston ( ed ), The Law of Contract3 ( 2007 ) 1573 ff; Beale in Beale ( ed ), Chitty on Contracts I30 ( 2008 ) 1598 ff.

155See, eg, Schäfer / Ott, Lehrbuch der ökonomischen Analyse des Zivilrechts4 ( 2005 ) 349 ff.

156This applies in any case to German, Austrian and Swiss law, see Koziol, Die Tötung im Schadenersatzrecht, in Koziol / Spier ( eds ), Liber Amicorum Pierre Widmer ( 2003 ) 203 ff. The situation is different, however, under Japanese law, which recognises a compensation claim on the part of the deceased that is passed on to his heirs; see on this Marutschke, Einführung in das japanische Recht2 ( 2010 ) 171 f; Nitta, Die Berechnung des Schadens beim Unfalltod eines minderjährigen Kindes, in: Müller-Freienfels et al ( eds ), Recht in Japan 11 ( 1998 ) 77 ff.

unless there are surviving dependants to whom the deceased had a duty to make maintenance payments: in reality – when the overall legal system is taken into account – there is no gap in protection here as criminal law comprehensively protects human life 157.

2 / 52 One controversial question is whether besides the notions of compensation and deterrence, the penal notion also plays a significant role in the law of tort ( more detail on this below no 3 / 12 ff ). If at all, this can only be relevant in the context of fault-based liability since only censured conduct can reasonably trigger penalties; however, even in this field its application is controversial. Under Austrian law, the gradation of the scope of compensation provided for in § 1324 ABGB according to the degree of fault could speak in favour of the penal concept. Nonetheless, the gravity of the fault and the compensation are only balanced against each other within the bounds of the compensation principle. This consideration of the gravity of the fault never leads to any penalty exceeding the compensation of the damage sustained but on the contrary, does mean the damage is only partially compensated if the fault is slight.

2 / 53 As far as the convergence of the different systems of legal protection is concerned, particularly in the interim areas, reference is had to the above-described overlaps between reparative injunctions and restitution in kind under the law of tort and also between the law on unjust enrichment and the law of tort. The blurring of the borders with the law of tort discussed in the context of the law on unjust enrichment could, however, also ensue – within narrow confines – when unjust procurement of an advantage is taken into consideration when imputing damage 158, because liability to compensate is all the more reasonable when it is covered by an enrichment:

Wendehorst 159 suggests that in cases where it is likely there was damage but this cannot be proven or estimated – for example in the field of competition law or intellectual property – the victim should be awarded the advantage gained by the perpetrator that acted unlawfully and culpably 160. This may mean that the victim is awarded too much but it is more acceptable that, if need be, the victim ultimately gains an advantage and not the perpetrator who acted unlawfully and culpably. This evaluation in connection with the increased need for deterrence given the special vulnerability of the legal interests at issue, would seem to justify at

157Koziol in: Koziol / Spier, Liber Amicorum Pierre Widmer 206; thus also B.A. Koch, Der Preis des Tötens, Barta-FS ( 2009 ) 189; Kötz / G. Wagner, Deliktsrecht11 ( 2010 ) no 738.

158On this in more detail Koziol, Die Bereicherung des Schädigers als schadenersatzrechtliches Zurechnungselement ? Zur Auflockerung der Grenze zwischen Schadenersatzund Bereiche­ rungsrecht, F. Bydlinski-FS ( 2002 ) 175 ff.

159Wendehorst, Anspruch und Ausgleich ( 1999 ) 171 ff.

160This is relevant in the rarer cases in which the prerequisites for a claim in respect of unjust enrichment are not fulfilled, see on this Koziol, F. Bydlinski-FS 188 f.

least a reversal of the burden of proof rather than the awarding of the advantage, so that the interferer must prove that the damage suffered is less than the advantage gained.

Furthermore, when it comes to the assessment of the damage the scope of dis- 2 / 54 cretion often available should be utilised to the benefit of the victim insofar as

such is covered by the advantage gained. This applies in particular in the case of non-pecuniary damage, which always allows considerable scope for discretion in assessment 161. However, it must be strongly emphasised that this must not lead to compensation awards that are no longer in any way covered by any measurable harm – as was wrongly assumed by the BGH in the Caroline cases 162. The disgorgement of profit gained by deliberate interference with third-party rights may only be obtained under the law on unjust enrichment or at most by invoking the concept of negotiorum gestio ( Recht der Geschäftsführung ohne Auftrag ) 163.

The procurement of an advantage is also a reason in my eyes to expand the – in principle elastic 164 – border between adequacy and the protective purpose, as the procurement of an advantage makes it more reasonable that the damage must be borne: it is appropriate that the damaging party that has acted unlawfully and culpably must also compensate the more remote damage he caused if and insofar as he has gained corresponding advantages from the action giving rise to liability. Nevertheless, this compensation still falls within the framework set out by the notion of compensation.

If the injuring party’s procurement of an advantage is a decisive factor for liability for the damage, this must also be taken into consideration in cases of the victim’s contributory conduct in establishing the proportions in which injuring party and victim must bear the damage. Therefore, within the boundaries of the profit gained, the injuring party may additionally be required to compensate a further part of the damage beyond what he would have to compensate according to the assessment of fault.

161See on this F. Bydlinski, Die » Umrechnung « immaterieller Schäden in Geld, in: Koziol / Spier, Liber Amicorum Pierre Widmer 27 ff.

162BGH in BGHZ 128, 1 = NJW 1995, 861; NJW 1996, 984 f. On this above all the persuasive criticism by Canaris, Gewinnanschöpfung bei Verletzung des allgemeinen Persönlichkeitsrechts, Deutsch-FS ( 1999 ) 99 ff.

163See in particular Canaris, Deutsch-FS 87 ff; cf further von Bar, Deliktsrecht I no 515 f; Hoppe, Gewinnorientierte Persönlichkeitsverletzung in der europäischen Regenbogenpresse, ZEuP 2000, 29; Löwe, Der Gedanke der Prävention im deutschen Schadensersatzrecht ( 2000 ) 185 ff; G. Wagner, Geldersatz für Persönlichkeitsverletzungen, ZEuP 2000, 200; Wernecke, Schadensersatz und Gewinnherausgabe als Strafelemente des bürgerlichen Rechts ? ( 2005 ).

164See Wilburg, Elemente 242 ff; F. Bydlinski, Zum gegenwärtigen Stand der Kausalitätstheorie im Schadensrecht, JBl 1958, 5 ff; Koziol, Haftpflichtrecht I3 no 8 / 16 and 21.

IX.  » Punitive damages « ?

A. Alleged need for such and concerns

2 / 55 The question here is whether the law of tort can or should converge with the criminal law to the extent that the victim is awarded an amount exceeding the damage sustained on the grounds of penalty or deterrence. Such awards exceeding the compensation of the damage suffered are generally referred to as » punitive damages «, a term obscuring the fact that in reality they are not directed at compensating damage but solely at imposing monetary penalties.

2 / 56 With respect to the need to grant such claims, which are not recognised in Continental European legal systems 165 but are established in Anglo-American jurisdictions 166, reference is repeatedly had to the argument that even in combination with other claims, such as for unjust enrichment by interference, the law of tort is not capable of providing the necessary protection for the rights recognised by the legal system.

This is emphasised above all with respect to intellectual property,167 where this has already led to the awarding of payments twice as high as the licence fee 168. These could be understood as punitive damages: due to their intangibility – thus the argument – intellectual property interests are » omnipresent « and facilitate simultaneous use by several people at several different places. However, this greater vulnerability is associated with particular difficulties when it comes to damage assessment as unauthorised use does not prevent use by authorised persons and thus any restrictions of the freedom to dispose of the good are difficult to prove. Any disgorgement of the profit gained by the interference under the law on unjust enrichment would only have minor deterrent effect, the argument continues, since such is only directed at the disgorgement of the advantage gained and thus involves no disadvantages for the interferer but only means he cannot realise the advantage for which he hoped. Besides this, the interferer’s risk of getting caught is not very high, concludes the argument.

These references to the vulnerability of intellectual property rights and the insufficient deterrent effect of the existing remedies open to victims are certainly persuasive. However, it must be pointed out that the same situation may arise in

165More detail on this in the relevant country reports and the Conclusio in: Koziol / Wilcox, Punitive Damages; see also B.A. Koch, Strafe muss sein – auch im Haftungsrecht, G.H. Roth-FS ( 2011 ) 379 ff.

166See the reports in: Koziol / Wilcox, Punitive Damages, on English law ( Wilcox, 7 ff ), on US-Amer- ican law ( Sebok, 155 ff ) and on South African law ( Neethling, 123 ); Prosser / Keeton, Handbook of the Law of Torts5 ( 1984 ) 9 ff; Dobbs, The Law of Torts ( 2000 ) 1062 ff; Stoll, Punitive Damages im Englischen Recht, Henrich-FS ( 2000 ) 593.

167On this in more detail Dreier, Kompensation 60 ff, with additional references.

168See Dreier, Kompensation 293 ff, with additional references.

169On the civil law claims see, for example, Stefula, Zivilrechtliche Fragen des Schwarzfahrens, ÖJZ 2002, 825 ff, with additional references.

170This is also highlighted by Dreier, Kompensation 547.

171Further, Koziol, Punitive Damages: Admission into the Seventh Legal Heaven or Eternal Damnation ? Comparative Report and Conclusion, in: Koziol / Wilcox, Punitive Damages no 43 ff.

notion of punishment is foreign to the private law. This even applies to the law of tort 172, although – at least when it comes to fault liability – it is the field of private law which was formerly connected with criminal law 173 and in which the penal concept could most reasonably still play a role today as it did in the past 174: it is true that the legal consequences are tied to conduct breaching duties and involving fault so that there are obvious parallels to criminal law; nonetheless in Continental European jurisdictions » punitive damages « are persuasively rejected for very fundamental reasons 175. The German BGH 176 even ruled that punitive damages awarded as a lump sum in addition to pecuniary and non-pecuniary damages was contrary to German public policy and consequently that a US-American judgement is often not enforceable in this respect in Germany 177; in the case of substantial departures from the compensation principle this also applies under the new Art 40 ( 3 ) EGBGB 178. The Italian Supreme Court 179 now takes a corresponding

172 Oetker in MünchKomm, BGB II5 § 249 no 8 with additional references in respect of German law. 173 See G. Wagner in MünchKomm, BGB V5 Vor § 823 no 2 f.

174 Historical outlooks are offered by Jansen in HKK zum BGB II §§ 249 – 253, 255 no 10 and 15. See Englard, Punitive Damages – A Modern Conundrum of Ancient Origin, JETL 2012, 15 f who considers the notion of a stark division between private and public law a » romantic one «. He writes that » … a typical tendency of many scholars is to cloth ideologies with theoretical legal notions and concepts. Thus an essential distinction between public and private law is fundamentally based upon ideological premises.«

175 On this F. Bydlinski, Die Suche nach der Mitte als Daueraufgabe der Privatrechtswissenschaft, AcP 204 ( 2004 ) 343 ff; idem, Die Maxime beidseitiger Rechtfertigung im Privatrecht, KoziolFS ( 2010 ) 1362 ff; Coderch, Punitive Damages and Continental Law, ZEuP 2001, 604; Koziol in: Koziol / Wilcox, Punitive Damages no 21 ff; Mörsdorf-Schulte, Funktion und Dogmatik US-ameri- kanischer punitive damages ( 1999 ). See also § 1292 ( 1 ) of the Austrian Code and on this Koziol, Grundgedanken, Grundnorm, Schaden und geschützte Interessen, in: Griss / Kathrein / Koziol, Entwurf 32. However, the following advocate punitive damages: Ebert, Pönale Elemente im deutschen Privatrecht ( 2004 ); Kocholl, Punitive Damages in Österreich ( 2001 ); critical on the last-named work B.C. Steininger, Austria, in: Koziol / B.C. Steininger, Yearbook 2001, 82 f; Müller, Punitive Damages und deutsches Schadensersatzrecht ( 2000 ) 360 ff; Schlobach, Das Präventionsprinzip im Recht des Schadensersatzes ( 2004 ); Sonntag, Entwicklungstendenzen der Privatstrafe ( 2005 ); in the field of intellectual property protection likewise Fort, Strafelemente im deutschen, amerikanischen und österreichischen Schadensersatzrecht unter besonderer Berücksichtigung des gewerblichen Rechtsschutzes und Urheberrechts ( 2001 ).

176 BGHZ 118, 312. In this sense also Mörsdorf-Schulte, Funktion und Dogmatik 298. Taking another view, however, Müller, Punitive Damages 360 ff. See also Magnus, Comparative Report on the Law of Damages, in: Magnus, Unification: Damages 187.

177 Another view on the other hand is taken by the Spanish Tribunal Supremo in the decision Miller Import Corp. v. Alabastres Alfredo, S.L., STS, 13. 11. 2001 ( Exequátur no 2039 / 1999 ).

178 Cf Junker in MünchKomm, BGB X5 Art 40 EGBGB no 113; Schäfer, Strafe und Prävention im Bürgerlichen Recht, AcP 202 ( 2002 ) 429 f.

179 Cass 17. 1. 2007, no 1183, in GI, 2007, 12, 2724; Cass 11. 11. 2008 no 26972. See Scarso, Punitive Damages in Italy, in: Koziol / Wilcox, Punitive Damages 374 ff and likewise Navarretta / Bargelli, Italy, in: Koziol / B.C. Steininger, Yearbook 2007, no 6 ff; Navarretta / Bargelli, Italy, in: Koziol / B.C. Steininger, Yearbook 2008, 338. See however the position in France where it was said in the context of the enforcement of a US decision awarding punitive damages that such damages are not in themselves contrary to public policy insofar as the awarded amount is not disproportionate to the harm

position. Even in its » heartland «, the USA, » punitive damages « are by no means uncontentious 180.

A more profound rationale for the civil law rejection of penalties that express 2 / 59 public censure but are designed to accrue to someone who suffered neither loss to

the corresponding extent nor deserves protection under the law of unjust enrichment, is delivered by F. Bydlinski 181. He convincingly showed that such an approach conflicts with the structural principle of bilateral justification for legal consequences so fundamental to all of private law. He emphasises that civil law norms always deal with the relationship between two or more subjects of the law and that therefore every provision has a direct impact on the relationship between persons described more closely in terms of the factual elements of the offence; that every allocation of rights, advantages or opportunities to certain subjects at the same time involves the direct establishment of duties, burdens or risks for certain other subjects. According to him, therefore » not only must there be a reasoning as to why one subject of the law is assigned a per se favourable and another subject a disadvantageous legal consequence but also why this ensues precisely in the relationship between these two subjects; in other words why a certain subject should be allocated rights or duties, opportunities or risks in relation to precisely a certain other subject.« Hence, the principle of bilateral justification within this relationship should apply, he argues: absolute, one-sided arguments relating only to one subject, however strong they may be in a certain way, can never suffice alone to justify a private law rule. Applied to our current discussion, this means that however strong the arguments in favour of penalising the perpetrator might be, they can never justify in any way awarding another private law subject an advantage when there is neither damage on the one side nor unjust enrichment on the other side to be compensated 182. Moreover, the same arguments also speak against awarding such claims for deterrent purposes 183.

sustained and the contractual breach. On the facts of the case, however, the court considered the

amount disproportionate. The Cour de cassation case ( Cass Civ 1, 1 December 2010, case no 1090 ) is discussed by Wester-Ouisse / Thiede, Punitive Damages in France: A New Deal ?, JETL 2012, 115 ff.

180Prosser / Keeton, Handbook of the Law of Torts5 ( 1984 ) 9 ff; Dobbs, Law of Remedies2 ( 1993 ) 355 ff. See also the report by Sebok, Punitive Damages in the United States, in: Koziol / Wilcox, Punitive Damages no 86 ff.

181F. Bydlinski, System und Prinzipien 92 ff; idem, AcP 204 ( 2004 ) 341 ff; idem, Koziol-FS 1355 ff. The principle of bilateral justification elaborated by F. Bydlinski is also recognised, for example, by Bollenberger, Gewinnabschöpfung bei Vertragsbruch, ZEuP 2000, 905; Canaris, Grundstrukturen des deutschen Deliktsrechts, VersR 2005, 579; Koziol in: Griss / Kathrein / Koziol, Entwurf 32; H.P. Walter, Recht und Rechtfertigung – Zur Problematik einseitigen Privatrechts, Gauch-FS ( 2004 ) 302 ff. Rejecting this line, on the other hand, G. Wagner, Präventivschadensersatz im Kon- tinental-Europäischen Privatrecht, Koziol-FS 932 f.

182Cf on this also Gounalakis, Persönlichkeitsschutz und Geldersatz, AfP 1998, 17.

183In favour above all G. Wagner, Neue Perspektiven im Schadensersatzrecht – Kommerzialisie­ rung, Strafschadensersatz, Kollektivschaden, Gutachten A zum 66. Deutschen Juristentag

If there are only arguments for penalising one party but not for a claim on behalf of the other party, criminal law may come into play but not private law 184. Even if the criminal law protection – in particular in the field of intellectual property rights – proves insufficient 185, this does not allow for the law of tort to be rearranged in a manner that would contravene the principles of private law and the law of tort. Instead either an independent area of law should be created or there should be a reform of criminal law, as is indeed underway. For instance, corporate criminal law should be well suited to closing some of the gaps in protection under criticism 186.

2 / 60 Apart from the fact that punitive damages conflict with the basic principles of private law, the concept also displays numerous other shortcomings. Firstly, it should be pointed out that the aim of deterrence proclaimed so loudly is only very inadequately served precisely in those situations when the punitive amount – like the damages – can only be subject to legal action when the injury has already occurred and damage has been sustained and not as soon as the conduct subject to censure is engaged in. It is highly inconsistent to direct a procedure at the punishment of proscribed conduct but make punishability contingent upon the occurrence of damage and yet still not link the extent of the penalty to that of said damage. In order to realise the aim of deterrence, it would moreover be necessary to disregard the occurrence of damage and tie the penalty to the committing of the prohibited action and even to the preparatory actions and the attempt in this respect. Only in this way is it possible effectively to prevent the damage. This means that the monetary penalties would also have to be permisible in connection with preventive and reparative injunctions if their advocates are to be consistent, though however, it would be necessary to take into consideration that fault must be required in respect of monetary penalties in contrast to private law preventive legal protection.

2 / 61 This leads us to another problem which applies in general to the German law regarding monetary penalties: the objective standard of fault in the law of tort means subjective blameworthiness is disregarded yet precisely this is rightly still seen as a prerequisite for imposing penalties 187. Civil law monetary penalties, therefore, should not be based on the objective concept of fault under the law of

( 2006 ) 451 ff; idem, Prävention und Verhaltenssteuerung durch Privatrecht – Anmaßung oder legitime Aufgabe ? AcP 206 ( 2006 ) 451 ff; idem, Koziol-FS 931 ff; cautiously also Dreier, Kompensa-

tion 500 ff. See on this in detail below no 2 / 63 ff.

184Likewise H.P. Walter, Gauch-FS 305. It should be pointed out that in Austria administrative penalties are foreseen in many cases and thus public prosecutors and criminal courts are not occupied with such matters; see for instance § 32 KSchG and § 98 BWG.

185On these see Dreier, Kompensation 523 ff.

186This is also accepted by Dreier, Kompensation 527 ff.

187Welzel, Das deutsche Strafrecht11 ( 1969 ) 3 ff; Freund in MünchKomm, StGB I Vor § 13 no 12; Roxin, Strafrecht, Allgemeiner Teil I4 ( 2006 ) § 8 B no 19.

tort but on the subjective concept of fault specific to criminal law. In Austria, on the other hand, this problem does not arise as a subjective standard of fault is applied anyway – except in the case of professional experts ( § 1299 ABGB ).

Further, less satisfactory consequences 188 arise in cases that involve or may involve several victims. Should the first claimant, who for instance sues in respect of an injury caused by the defective construction of an automobile, be awarded the entire punitive amount appropriate to the offence, this reveals the arbitrariness of the result very tellingly given that the other victims receive nothing. If each of these claimants were to be awarded just part of this punitive amount in order to avoid such a situation, the problem is that it is not usually possible to determine in advance the number of further claimants and thus the proportions of the amount to be awarded to each.

B. Alternatives

Even if the law of tort, which grants the victim rights to compensation from the 2 / 62 injuring party is not the appropriate field for » punitive damages «, then we could consider other legal protection systems, which on the one hand exercise sufficient deterrent effect by bridging gaps left by the criminal law but, on the other hand,

do not violate private law principles. It would certainly have to be a condition that individual claimants were not undeservedly rewarded with the punitive amount. Possible candidates would be rules which – like actions for preventive injunctions and damages 189 – grant associations the right to sue for monetary penalties 190 and these awards are paid to the public purse or at least to charitable institutions 191. This would not infringe the prohibition on enrichment always emphasised in the law of tort 192 or the requirement of bilateral justification in private law; on the other hand the deterrent effect regarded as necessary would be attained without over-burdening the criminal courts.

188Dreier, Kompensation 549 ff, also points out possible distortions of competition.

189Association claims ( Verbandsklagen ) for damages are provided for in several European countries. Cf on French law Kühnberg, Die konsumentenschützende Verbandsklage. Eine Gegenüberstellung der österreichischen und französischen Rechtslage, ZfRV 2005, 106; on Greek law Mikroulea, Verbandsklage auf Schadenersatz im griechischen Verbraucherschutzgesetz, Geor- giades-FS ( 2006 ) 281 ff. Cf furthermore the ideas presented by van Boom, Efficacious Enforcement in Contract and Tort ( 2006 ) 29, 33.

190As an incentive to file such claims, a lump-sum payment for the efforts associated with the preparation of the enforcement of the right could be taken into consideration.

191Cf Ben-Shahar, Causation and Forseeability, in: Faure, Tort Law 99 f, who clearly wants to provide for this very generally in cases in which the payment exceeds the actual damage.

192On its development see Jansen in HKK zum BGB II §§ 249 – 253, 255 no 17 f, 21, 61. On the case law of the BGH cf Dressler, Schadensausgleich und Bereicherungsverbot, G. Müller-FS ( 2009 ) 11 ff.

C. Preventive damages instead of punitive damages ?

of tort law and, therefore, is unable to justify on its own a claim for damages. According to Continental legal systems, prevention, ie deterrence, is not even the main aim of tort law; rather, the primary aim is the idea of compensation as the claim for

193 G. Wagner, Tort Law and Liability Insurance, in: Faure, Tort Law 385, points out these differences; they can certainly not be circumvented by transplanting penalties to private law.

194 See the proposals for limitation put by van Boom, Efficacious Enforcement 35 f.

195 Cf on this also Oppermann, Gedanken zur Strafe im Privatrecht, Rüping-FS ( 2009 ) 160 ff.

196 The prosecution authorities would be disburdened as advocated by Dreier, Kompensation 525, in this manner.

197 G. Wagner, Neue Perspektiven im Schadensersatzrecht – Kommerzialisierung, Strafschadensersatz, Kollektivschaden, Gutachten A zum 66. Deutschen Juristentag ( 2006 ) 451 ff; idem, AcP 206 ( 2006 ) 451 ff; idem, Koziol-FS 931 ff. Cf W.H. van Boom, Eficacious Enforcement 35 ff; Visscher, Economic Analysis of Punitive Damages, in: Koziol / Wilcox, Punitive Damages 222 ff.

198 Cf in more detail Koziol in: Koziol / Wilcox, Punitive Damages no 43 ff; cf also below no 3 / 4 ff.