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Case:
BGHZ 66, 388 VI. Civil Senate (VI ZR 50/75) = NJW 1976, 1740 = VersR 1976, 1043
Date:
08 June 1976
Translated by:
F.H.Lawson and B.S.Markesinis
Copyright:
Professor B. S. Markesinis

The defendant company, which ran a building enterprise, was on 23 November 1973 carrying out excavations on private property in the Württemberg town W. An electric cable was negligently damaged. This led to a 27-minute interruption of the current used in the plaintiff’s manufacturing business. The plaintiff estimated that the interruption led, through a failure of production, to a loss of DM 1157. The plaintiff claims that amount as damages from the defendant.

Both lower instances rejected the claim. The plaintiff is granted leave to apply for review, but is unsuccessful for the following reasons:

I.

1. The appellate court is of opinion that:

(a) The claim can find no support in § 823 I BGB; for not property of the plaintiff’s was damaged or destroyed by the electricity failure. Moreover, no legal injury was done to the plaintiff’s right of an established and active business, since there was no direct interference with it.

(b) Moreover, the appellate court rejects a claim for compensation under § 823 II BGB; for the defendant’s contravention of § 18 III of the Baden-Württemberg Building Regulations (LBauO) did not constitute a breach of an enactment designed for the plaintiff’s protection. The provision says: ‘Public spaces, supply, run-off and warning apparatuses and also hydrants, survey marks, and boundary marks must be protected during the process of building and, where necessary, be kept accessible subject to the necessary precautions.’

In essentials the appellate court says: The language of this provision contemplates damage only to things, not persons. Moreover, the Regulations as a whole belong to the law of public security and order. § 18 III cannot be assumed to afford to electricity users a claim to compensation not otherwise provided for, all the more since it would lead to a great and intolerable extension of liability. It would also be consistent with the fact that § 1 II no. 1 of the Regulations affords no private law right to compensation where a similar accident occurs in the course of building in places open to public traffic. This reasoning is in open conflict with the BGH decision of 12 March 1968 about the corresponding regulations of Land Nordrhein-Westfalen.

It is against this reasoning (i.e., of BGH NJW 1968, 1279) that this appeal is lodged. In support of the appeal a question is raised whether, contrary to the principles laid down by BGHZ 29, 65 (74) = NJW 1959, 479, an interruption of electricity supply is not to be regarded as an invasion of the right of an established and active business, in the sense of § 823 I BGB.

II. The appeal is unsuccessful.

1. The Senate deciding the case agrees with the appellate court in holding that the plaintiff cannot invoke § 18 III 1 of the Regulations as a protective enactment for the purposes of § 823 II BGB. In so far as this runs counter to the principles of the aforementioned decision of the BGH of 12 March 1968, the Court rejects them. The decision of 12 March 1968 is not followed.

(a) [Earlier decisions elsewhere are in agreement.]

(b) There are convincing reasons for approving the appellate decision. That certain provisions of the Regulations, especially those for the protection of neighbours, can be treated as protective enactments for the purposes of § 823 II BGB does not stand in the way. For no such purpose can be detected in favour of electricity users.

(aa) The provision of the Regulations here in question is not an enactment for the protection of the plaintiff. Although admittedly most rules of a public law character operate in a general way to protect and further the interest of individual citizens, it does not follow that that general operation also specifies the cases where a protective enactment in question affords him an individual protection. That is not difficult to establish if the protective function of a rule can be detected in the statement of its purpose; but if, as often happens with recent enactments, the travaux préparatoires give only an imperfect indication or none at all, it is of no use to consider legislative purpose in the abstract: nor has this been done so far by the Federal High Court, despite some ambiguous formulations. In the last resort the question must be attacked directly, whether the creation of an individual claim for compensation appears meaningful, sensible, and tolerable in the light of the whole system of liability. Only by doing so can a development, rightly feared by the appellate court, be avoided, namely that the increasing tendency to base claims on § 823 II BGB might undermine Parliament’s ruling against a general liability for purely economic loss. In this connection it may be useful to ask whether in such cases an individual claim for an injunction would be sensible and tolerable.

(c) There is no need to go further into these aspects of the decision; for it appears from what has been said that the appellate court properly decided that the Regulations afforded no individual protection to users of electricity against possible economic damage.

(aa) According to the basic principle of liability laid down by federal law there is, as a rule, no liability for indirect damage (economic damage that a third party suffers by mere reflex operation through injury to another’s property); and this includes damage to an electricity user resulting from damage to a cable owned by an electricity supplier. That the failure to afford compensation is not felt to be intolerable is shown inter alia by the fact that the responsibility of electricity suppliers even for vital failures is excluded by regular nation-wide conditions of supply. Although the possibility cannot be absolutely excluded that this principle may be set aside by protective Land legislation, nevertheless, such legislation should be interpreted to extend protection only if the need for it arises from a state of affairs in the law of the Land which could not have been anticipated on a federal level. Since that is obviously not the case here, the constitutional distribution of powers makes it unlikely that the Land legislator wantonly intended to extent protection by action repugnant to the federal rule.

(bb) But even apart from this constitutional aspect, based on the concept of constitutional demarcation of authority, the appellate decision must be approved. There is nothing to be said for the view that the Regulations, when regulating building, intended to afford to electricity users an abnormal individual protection when a cable is damaged. The appellate court rightly points to the lack of any corresponding provision in § 1 II of the LBauO (Landesbauordnung), where danger to cables is especially to be anticipated, that is to say, where works are conducted in places open to public traffic. In other fields also electricity users have no individual protection, for instance where cables are endangered in traffic, mining, or agricultural accidents. The possibility that a building regulation intends to afford a protection so much out of line in this particular field is very remote. The official statement of motives leading to the Regulations here in question lends no assistance. Moreover, it is noticeable that the basic duty of care already existed in the general law and was not originally created by the Regulations as part of Land law. Its inclusion in § 18 III only serves to sum up precautions required to be taken in works regulated by statute, and to form a basis for prosecution. There is nothing to show that an arbitrary individual protection was aimed at, alien to federal law and as part of a generally inappropriate set of regulations.

2. The appellate court also appropriately rejects any liability to compensate for an interference with the plaintiff’s business. It finds itself in agreement with the Senate decision of 1959 which dealt with a case on all fours with this one. The Senate, on reconsideration, holds fast in principle to its decision in spite of some loudly expressed academic criticism. The need to relate to a trade, as established by the 1959 judgment, which is denied in cases such as the present one, is essential if the protection provided by case-law in the event of a violation of the right of an established and active business is not to be enlarged into a general delictual rule for the protection of traders. The highest court has always taken this point into account although the boundaries of this ‘residual right’ affording special protection to traders have never been fully defined and much could be said in favour of a restrictive application of this delictual rule. In any event, matters cannot be otherwise in the case of a power cut of this nature which affects everyone and which is liable to cause widespread financial loss to persons who do not exercise any trade and to whom the general law of delict affords no claim for damages.

The above cannot be countered with the argument that where damage is caused by an electricity failure a distinction between physical and economic damage makes little sense. In fact the Senate has so far awarded damages for physical damage in business according to § 823 I BGB. This, it must be admitted, somewhat surprising limitation—von Caemmerer calls it ‘crude’—rests on a binding general decision of the delictual law in force. It is impossible to recognize any reason for departing from it in favour of businesses. In any event, might not the danger of less foreseeable and perhaps much greater physical damage involved in such accidents justify a partial exemption of the tortfeasor from a risk that the electricity supplier frees himself from with state approval? But the present case affords no occasion for such an examination, since physical damage is neither manifest nor even doubtful.

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