Equity liability
In the equity liability is an exception to the negligence principles .
Legal situation in Germany
In Germany, liability in equity is regulated in Section 829 of the German Civil Code (BGB). In the event of an unlawful act according to § 823 or § 826 BGB, for which the injuring party does not need to be liable due to lack of criminal capacity , a claim for compensation for reasons of equity can still be considered. However, this only applies if no third party subject to supervision has to pay for the damage. In the context of equity, in addition to all circumstances of the individual case and the natural insight of the person incapable of fault, in particular the financial circumstances of the injuring party vis-à-vis the injured party must be taken into account. It is necessary that the injured party appears to be financially much better off than the injured party. According to case law, voluntary liability insurance taken out by the injuring party can only play a role with regard to the amount of the compensation, but not with regard to the affirmation of liability per se.
§ 829 BGB is to be applied accordingly to the other basic facts of the unlawful act ( § 830 Abs. 1 S. 2, § 831 , § 833 S. 2, § 836 BGB), as well as in the liability-fulfilling facts in the context of § 254 BGB. An application to the contractual liability isexcludedfor lack of mention in § 276 Abs. 1 BGB.
Legal situation in Austria
In Austria, the equity liability can be found, among other things, in § 1310. This states that underage minors (under 14) are also liable for damage if the legal requirements of §§ 1308 to 1310 ABGB are present. Unlike the BHG, the OGH also includes the existence of insurance. This criticizes the fact that insurance should cover an existing liability, but not justify such a liability. For the case law, the objection is that the injured minor does not suffer any real disadvantage, apart from the penalty.
literature
- Otto Palandt (abbreviation): Civil Code. Commentary with subsidiary laws , 70th edition, Munich 2011, ISBN 978-3-406-61000-4
- Geigel - Haag, The Liability Process , 27th edition, Munich 2015, Verlag CH Beck, ISBN 978-3-406-66606-3 , Chapter 16 No. 3: Equity liability
