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BGHZ 86, 212 VI. Civil Senate (VI ZR 222/80) = NJW 1983, 1107 = JZ 1983, 390
11 January 1983
Translated by:
K. Lipstein
Professor B.S. Markesinis

The plaintiff, a general medical practitioner, was run down by a lorry on 20 September 1976 while walking in Bad Schönborn. The lorry was insured against accidents by the defendant who admitted liability in principle without reservation. The injuries of the plaintiff consisted in several abrasions, bruises, and haemorrhage; in addition he alleges that he suffered a renewed and more severe attack of tachycardia and palpitations, while the defendant denies that these are the results of the accident.

In the proceedings before the Court of First Instance the plaintiff claimed damages on the ground that between 20 September and 19 October 1976 he was not able to attend to his practice and had thus suffered a loss of income.

The District Court of Karlsruhe rejected the claim on the ground that the allegation of the plaintiff in specifying his damages had not been proved. On appeal the plaintiff pursued his claim to a reduced extent only. He pleaded now—correctly, as the defendant admits—that he had closed down his practice as early as 15 September 1976, when he started his vacation for reasons of health in Bad Schönborn. As a result of the accident he had lost twenty-one days of vacation.

The plaintiff contends that the sum of DM 10,873 represents the expenses of a resumed holiday on the basis of the hypothetical cost of a locum tenens and in running expenses for employers and maintenance. He argues that the lost vacation must be compensated according to these principles.

The Court of Appeal of Karlsruhe rejected the appeal to this effect. A further appeal by the plaintiff was unsuccessful for the following


I. The Court of Appeal has held that the plaintiff’s claim for ‘spoilt holidays’, which admittedly he did not resume, is not justified, even having regard to the practice initiated by the decision of the Federal Supreme Court [reference]. It referred to the criticism of this decision in the literature and is of the opinion that in any case these principles cannot be extended to the sphere of unjustifiable enrichment. In this context, non-economic damages are here in issue which according to § 253 BGB could only be recovered where an express provision so required.

II. The decision under review cannot be faulted, at least in the result.

1. The Court of Appeal rightly starts from the premiss that the plaintiff cannot claim damages equal to the ‘value of the vacation’ for having suffered the loss of a holiday which was not taken up later on.

(a) In so far as the law of tort is concerned, the damages for the economic consequences to be recovered in the case of injury to the person are mainly restricted to losses of gains and future earnings (§ 843 BGB). The practice of the courts has with good reason interpreted these notions broadly. However, this has not modified the principle that according to the intention of the legislators all loss of enjoyment can only result in damages for pain and suffering (§§ 253, 847 BGB). Thus a direct ‘commercialization’ assessment of the vacation is excluded.

Accordingly, the Federal Supreme Court has, for instance, denied damages if, as a result of his injuries, a person could not exercise his licence to hunt which he had acquired for payment [reference]. The Court also denied damages for the loss of use of a damaged motor car if during the period in question he was unable to use it—even if the inability of the plaintiff to use the motor car was the result of a personal injury suffered on the occasion of the same accident [references]. The temporary inability to work, too, does not constitute a recoverable head of damages, unless it results in a loss of income [reference].

Similarly, the Federal Supreme Court has disallowed damages for the ‘value of a vacation’ resulting from damage to an object (a motor car) [reference]. This judgment shows that the Third Civil Senate also shares the opinion that generally a lost period of vacation cannot be treated as an economic loss resulting from the violation of the legal interests mentioned in § 823 I BGB. Normally the same applies in the case of violations of protective laws (§ 823 II BGB). The fact that in an earlier decision [reference] . . . the Third Civil Senate held differently in a case of liability for the violation of official duties (§ 839 BGB) may perhaps be explained by the special connection between the error committed by the customs authorities and the vacation; however, it is unnecessary in this context to discuss this question any further.

(b) This practice is to be maintained in the sphere of torts having regard also to the more recent pronouncements of the Seventh Civil Senate. According to the chain of authorities initiated by the decision [references], it is indeed admissible to claim damages for ‘lost holidays’ as economic loss if breaches of contract are involved concerning the arrangement for or the performance in kind or by means of services connected with the form of the holidays. These efforts of the Seventh Civil Senate to start a new practice have been superseded by the statutory regulation of the travel contract (§ 651a–k), but its substance has been maintained in essence.

The Seventh Civil Senate clearly intended to create a solution for this (contractual) sphere in particular, which satisfies the interest concerned in the absence of a statutory regulation to this effect. The legislature, too, has restricted to this area the new rule, which may be said to limit to a certain extent the principle expressed in § 253 BGB, which also applies in principle to the law of contract. The Seventh Civil Senate did not regard its practice established before the legislative change as conflicting with the practice regarding the law of tort referred to in (a) above, of which it was aware [references]; the reason was that it did not regard itself as precluded from adhering to this practice because it was only concerned with contractual claims. Moreover, it regards its aim as mainly satisfied by the new regulation in the Civil Code which is limited to the law of contract [reference].

Consequently, the present Senate is not precluded from adhering to its practice pertaining to the law of tort. It is unnecessary to determine whether the above-mentioned decisions of the Seventh Civil Senate and the majority of writers [references] have only sought to find a solution by relying on a notion of economic damage which is devised to be of general validity. Objections might be raised against such an attempt. Less emphasis must be placed on the notion of economic damage, the details of which have given rise to theoretical disputes, and stress should be laid on the question whether, having regard to the purpose of the respective grounds of liability, any deleterious effect is still to be treated as economic damage. (For the attribution of consequential damage in the light of the purpose of liability in general, see the recent decision of this Senate—reference.) Accordingly, it seems entirely appropriate to treat the enjoyment of holidays in commercial terms when—and only when—the enjoyment of holidays has been made directly or indirectly the object of a contractual performance and if this obligation has been breached. To this extent such a close and clear relationship exists between the contractual duty to act and the interest in enjoying the holiday which had, so to say, been entrusted to the other contracting party that it appears justifiable to attribute to the enjoyment of vacations a commercial character based on the contractual agreement. This court finds support for its view in the observations of Stoll [reference] which are shared to a great extent by Lange [reference]; see also Steffen [reference]; Hagen [reference]. The need to relate the commercial qualifications of damages for loss of enjoyment to the purpose of the basis of liability is also underlined by the decision of the Third Civil Senate of 3 November 1980 [reference] which—contrary to the above-mentioned judgment of this Senate [reference]—envisaged the possibility of damages in respect of the loss of the pleasure of earning a licence to hunt in a case where this licence to hunt had been frustrated illegally.

If it is correct that the loss of enjoyment (in the present case as regards the period of vacation) can only be taken into consideration if another legally protected interest has been violated (e.g. in the present case by injuring health, but also where an object is damaged, such as a motor car needed for holiday travel), it remains necessary to observe the purpose of the provision of § 253 BGB in the absence of a special statutory rule. This is not only in accordance with the statute, but takes into account the undisputable consideration that otherwise an unpredictable expansion of liability in tort would have to be expected. The practice of the Seventh Civil Senate does not fail to perceive this either [references]. The reason is that the loss of the enjoyment of holidays is only one of many conceivable cases in which the loss of enjoyment, while not directly capable of being assessed in economic terms, can nevertheless be attributed a ‘commercial’ value in certain circumstances. The fact that the area of damage may be incalculable is absent precisely in those cases where the enjoyment of a vacation is directly and clearly connected with the failure to perform contractual duties.

Consequently, this Senate does not believe that its view conflicts with the results of the decisions of the Seventh Civil Senate. The fact that in their reasoning these decisions differ in part from its own considerations is not determining in the view of this Senate, which approves the results reached by those decisions. Therefore they are not opposed to the present decision.

2. The foregoing considerations would not, however, exclude the possibility that in assessing the amount of damages for pain and suffering due to the plaintiff account may be taken of the fact that his injuries (which have proved to have been relatively light) have resulted in the loss of three weeks’ vacation . . .

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