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Tort Law Germany

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by

Lea Löbel

on 13 November 2012

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Transcript of Tort Law Germany

Basic elements of German Tort Law German Doctrine -> systematisation
From general to more specific rules

General Torts
§823 I/II BGB -> infringement of legal interest or statutory rule
§826 BGB -> intentional unethical conduct

More specific Torts
§824 BGB -> damage to other person´s credit
§839 BGB -> breach of an official duty Fault liability Tatbestand -> a protected interest must be infringed (right, statute, ethics)

Rechtswidrigkeit -> Unlawfulness not automatically established (justifications)

Schuld -> Intention or negligence (§276 I BGB)
Subjective test not longer used
Reasonable Person/ Child test Fault liability: Requirements (1)A person who, intentionally or negligently, unlawfully injures the life, body, health, freedom, property or another right of another person is liable to make compensation to the other party for the damage arising from this.

Restricted form but open for interpretation
Contractual obligations / pure economic loss not covered
Problem: coverage of omissions §823 I BGB A person who, in a manner contrary to public policy, intentionally inflicts damage on another person is liable to the other person to make compensation for the damage.

Contra bonos mores (Sittenwidrigkeit)
Default rule if §823 does not apply
Today: contrary to economic/ legal order
Schuld: intention has to be proven (dolus eventualis) §826 BGB Infringement of right no basis for omission
Breach of safety duty -> societal safety duties
Reichsgericht judgment 1903 (RGZ 54,53)
Later more areas covered -> e.g indirectly caused damage
standard of care = fault liability
Covers: roads, premises, activities


Debate about application with §823 I or II
Protect conduct or people´s interests
Still within §823 I Verkehrspflicht Recht am Gewerbe ( right to business)
1904 since no granting damages for pure economic loss
Extended to unfair competition, endangerment of creditworthiness
Categorized as : any other right (§823 I BGB) BUT court has to balance interests

Allgemeine Persönlichkeitsrechte (General Personality Rights)
Dr. Schacht case providing extended protection for human dignity (media data, telephone tapping)
But not unlimited: see Hannover v. Germany Judge- Made rights Gefährdungshaftung -> in form of specific acts
Exception: §833 BGB -> keeping luxury animal
Acts include railways, cars, aeroplanes

Non- pecuniary loss not covered (Schmerzensgeld)

Liability for things -> e.g. Road Traffic Act
Liability for persons -> §832 BGB supervision (covers minors as well as handycaped)
Vicarious liability -> §831 BGB but defences possible Strict liability General Rules Strict Liabilty Lea Löbel, 14.11.12
Comparative Tort Law
Week 3
Full transcript