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Tort Law — Compensation and Satisfaction

Date Citation Note
07.05.1996 BGHZ 132, 373 VI. Civil Senate (VI ZR 138/95) = JZ 1996, 1075 Damage to a vehicle
Claim of hire costs
Duty to mitigate
§ 249 BGB
12.03.1996 BGH NJW 1996, 1533 VI. Civil Senate (VI ZR 12/95) Right to compensation of a police officer injured while pursuing a criminal
§§ 254, 823 BGB
11.10.1994 BGHZ 127, 186 VI. Civil Senate (VI ZR 303/93) = NJW 1995, 452 Damages for pain and suffering in road accident under § 829 BGB (fairness liability) even though the driver causing harm is not at fault
Effect of the driver’s compulsory insurance
§ 829 BGB
09.11.1993 BGHZ 124, 52 VI. Civil Senate (VI ZR 62/93) Destruction of frozen sperm (claim for damages)
Case note
§ 823 BGB
19.10.1993 BGH NJW 1993, 3321 VI. Civil Senate (VI ZR 20/93) Limits to the principle of restitutio in integrum
§ 251 BGB
13.10.1992 BGHZ 120, 1 VI. Civil Senate (VI ZR 201/91) Non-pecuniary loss
Child born with serious brain damage due to negligence of obstetrician; extensive lossof capacity for perception and sensation; destruction of the personality which amounts to non-material harm; compensation to be assessed independently and not as a merely symbolic sum
Art. 1 I GG
§ 847 BGB
15.10.1991 BGHZ 115, 364 VI. Civil Senate (VI ZR 314/90) Accident damage to a car
Restitution in kind
Comparison between the costs of repair (including any depreciation in value) and the costs of replacement
Residual value to be ingnored on the replacement side of the equation
Importance of 'integrity interest' justifies costs of repair exceeding replacement value by 30 % (as a rule)
Different rules apply if the costs of hiring a vehicle (to cover repair) and the costs of replacement are grossly disproportionate to each other
When victim chooses a course of action which is apparently cheaper, risks associated with the auto workshop or the cost prognosis fall into the responsibility of the tortfeasor if the victim is not at fault
§§ 249, 251 BGB
09.07.1986 BGHZ 98, 212 Great Civil Senate (GSZ 1/86) Unbewohnbares Haus -decision = NJW 1987, 50 JZ 1987, 306 Questions asked by court in NJW 1986, 2037
Owner has tort claim for economic loss for thing he temporarily cannot use, even though no extra expense or lost revenue, if domestic economy depends on its constant availability, and he would otherwise have used it
Claim is not too uncertain
Items to include in difference theory calculation based on protective function of tort and compensatory function of damages
§ 252 can be extended to analogous domestic use, if damages not in abstracto
Loss of use must be actually felt, objectively measurable and not purely personal (§ 253 BGB)
Quantification on case-by-case basis, e.g., rental purged of profit elements, basic post-acquisition costs for period in question, modest supplement
§§ 249, 252 BGB
14.01.1986 BGHZ 97, 14 VI. Civil Senate (VI ZR 48/85) Fiktive Operationskosten -decision = NJW 1986, 1538 Claim for the costs of surgery to remove scars; no entitlement as claimant did not intend to have the operation carried out
§ 249 BGB
22.11.1985 BGH NJW 1986, 2037 V. Civil Senate (V ZR 237/84) JZ 1986, 387 Defendant's excavation made claimant's house unstable and subject to evacuation order; claimant moved to dormobile for several weeks
No economic harm according to difference theory
No compensation for mere loss of use (§§ 252, 253 BGB)
Special rules for motor vehicles
Monetary compensation, § 251 BGB (as opposed to restitution in kind) not available for non-economic harm
Periodic costs not caused by tort and should be at owner's risk
Further problems about quantification
Modest addition unjustified
Issue referred to Great Civil Senate
§§ 249 ff. BGB
11.01.1983 BGHZ 86, 212 VI. Civil Senate (VI ZR 222/80) = NJW 1983, 1107 = JZ 1983, 390 Doctor knocked down by lorry; shut down practice
Could not claim for value of holiday not taken up
Not economic consequence (§ 843 BGB)
Enjoyment of holiday could only be treated in commercial terms if breach of contract
Loss of enjoyment could only result in damages for pain and suffering, but these might take account of loss of holiday (§§ 253, 847 BGB)
§§ 249, 823, 651 f. BGB
26.01.1971 BGH NJW 1971, 698 VI. Civil Senate (VI ZR 95/70) VersR 1971, 465 Defendant advertised aphrodisiacs in magazine using sex education film advertisement of actress
Negligent violation of personality right (§ 823 I BGB) not to ask if she consented
Right, because of Arts 1, 2 GG, to compensation for non-economic loss, as no satisfactory alternative (order to desist or retract inadequate)
Claimant had reasonable grounds for believing she could be identified
Consent needed under §§ 22, 23 KUG even if person of contemporary history, as business advertisement
Misleading inference that consent given for money
Severe injury necessary: depended on all circumstances but present here
Art. 1,2 GG
§§ 823, 847 BGB
§§ 22, 23 KunstUrhG
06.07.1955 BGHZ 18, 149 Great Civil Senate (GSZ 1/55) Damages for pain and suffering under § 847 BGB are for (1) appropriate compensation for non-financial claims and (2) satisfaction
Consider all circumstances including blameworthiness, and financial circumstances of parties (which is not contrary to equality principle) except where defendant is Fiscus
Consider especially extent of impairment of life: extent, severity and duration of pain, suffering and disfigurement
Weight (if any) of other circumstances depends on facts
Consider extent to which defendant indemnified by liability insurance or claim for redress
If necessary, measure compensation, as against several defendants, in relationship with each
If fundamental change in defendant’s financial circumstances, periodic payments may be adjusted
§ 847 BGB