Third party liquidation

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The third-party claims liquidation describes the correction model of a legal problem that occurs in several case constellations in German law on damages . The third-party damage liquidation aims to compensate for the accidental shifting of damage to a third party from the perspective of the injuring party . Its calculable risk is not increased because it is liable where it was expected to be. Due to the shift of the damage to him, the injured third party now receives a liquidation claim , whereas the claimant from the legal relationship with the injuring party cancels the claim in the absence of any damage incurred by him.

Without this construction, the injuring party would not have to compensate the claimant or the injured party for the damage, since the claimant has no damage and the injured party has no claim against the injuring party. Since this result is assessed as unfair, it needs to be corrected by the third party claims liquidation.

principle

The starting point is the civil law principle that the injured party has a legal claim against the injuring party and the injuring party is obliged to compensate the injured party for the damage suffered (§ § 249 ff. BGB). Furthermore, only one's own damage can be asserted against the injuring party, but not the damage of a third party.

However, there are case constellations in which damage - from the point of view of the injuring party, accidentally - occurs to a person other than the claimant and the injuring party is thus unjustifiably relieved. Case constellations of the accidental shifting of damage can be: the "obligatory risk relief" (divergence of contractual or statutory risk-taking rules ), cases of " indirect representation " (representative acts in his own name, but for the account of a third party) and cases of damage that are in "custody" (the Owner leaves the custody of an item to a third party who damages it). The third party liquidation institute ensures that the injured party is still compensated in these cases: the person whose legal position has been interfered with can assert the damage suffered by the third party and sue the injuring party for benefits to the third party.

The third party damage liquidation is to be distinguished from the contract with protective effect in favor of third parties , in which the claimant cannot assert the damage of the third party, but - furthermore - the third party receives its own claim against the injuring party. In this respect, there is an accumulation of liability for the injuring party in the context of the contract with protective effect in favor of third parties (he is liable to his contractual partner as well as to the third party involved), while in the case of third-party damage liquidation there is only a shift in liability.

Example of shifting damage through transfer of risk

Buyer K has ordered 200 bottles of wine for his restaurant from seller V. V packed the goods properly and sent them to K. On the way it is destroyed by the transport company T ( sale by mail order ). If V was still the owner of the goods, which is regularly the case, he can keep to T under the transport contract or take action against him by means of tortious damages ( Section 823 (1) BGB). The service originally owed from the category has been specified when it is handed over to T , which is why V does not have to perform again to K after the impossibility of delivery by T has occurred ( Section 275 (1) BGB). On the other hand, because of Section 447 (1) BGB, the price risk (risk of loss of the goods) is passed on to K, so he has to pay the purchase price despite non-performance of the goods. The actually damaged K has no claims against T himself, because he did not conclude the transport contract, but V and claims for damages according to § 823 Paragraph 1 BGB fail due to the lack of property (possession) of the K. V now has claims for damages but no damage because he receives the purchase price (the consideration ) from K. K, on ​​the other hand, has the damage because he has to pay the purchase price, but has neither a contract nor a tort to assert a claim.

Solution: In the case of third-party claims liquidation, one uses a trick. The damage requirement of the norm on which the claim is based is simply met by the fact that the potentially entitled to compensation in relation to the damaging party is attributed the external damage as if it were their own. For T who caused the damage, the shift of the damage from V to K by Section 447 of the German Civil Code (BGB) turns out to be purely coincidental. According to general opinion, V should therefore be able to demand compensation from T for the damage. V must assign this claim to K as a substitute commodum for the destroyed goods within the framework of the obligatory risk relief . The latter can then assert the damage against T. K executes insofar as he allows V to assign his claims for damages in accordance with Section 275 (1) and Section 283 (1) BGB .

The obligation to assign ultimately ensures that the injuring party cannot benefit from accidental shifting of the damage and that the injured party receives compensation for the damage caused. If, in a modification of the case, K had been a consumer in the sense of a sale of consumer goods according to § 474 ff. BGB, the price risk would not have passed to him in the first place. Damage and claim would have coincided with V and there would be no room for third-party claims liquidation.

The case variant is solved differently again if T acts as a freight forwarder within the meaning of the Commercial Code . Since the contractual relationships between V and T then represent a freight contract within the meaning of § 407 ff. HGB, § 421 Paragraph 1 HGB is applicable. Section 421 of the German Commercial Code (HGB) grants K as the recipient of the services a claim for damages against T in the original form. There is no room for third-party claims liquidation here either.

requirements

The general requirements for third-party claims liquidation are:

  1. The damage does not lie with the claimant. (Claim without damage)
  2. The injured party has no claim. (Damage without claim)
  3. Accidental shifting of the damage from the claimant to the injured party.

Case groups

Various case groups for third-party claims liquidation have been developed from case law and literature. A generalization beyond these case groups is out of the question.

The most important groups of cases of third party claims liquidation are:

  • Indirect representation : Anyone who has concluded a contract in his own name for the account of a third party can assert a claim for damages arising from the contract, although the damage in the internal relationship between the representative and the principal affects the latter. Since the contract is concluded in one's own name , there is currently no case of genuine representation. In this respect, the concept of indirect representation is misleading.
  • Mandatory discharge of risk: Anyone who is legally obliged to transfer ownership can be released within the framework of risk-bearing rules (e.g. § 447 , § 644 , § 2174 BGB) if the item perishes before performance through the fault of a third party; in this case the owner can assert the damage against the third party in the interests of the person bearing the risk. In the case of § 447 BGB, however, § 475 Paragraph 2 BGB must be observed.
  • Duty of care: The owner who entrusts the custody of an item to a third party by contract can assert damage to the owner in the event of a breach of the duty of care to the third party.
  • Certain trust relationships, e.g. B. Assignment of Security.
  • According to some opinions , a constellation occurring within the framework of Section 241a of the German Civil Code (BGB) can also lead to third-party claims liquidation.

literature

  • Ulrich Büdenbender : Benefit equalization and third party damage liquidation in the case of obligatory risk relief: similarities, points of contact and differences , Mohr, Tübingen 1996, ISBN 3-16-146487-7 .
  • Andreas Goerth: Die thirdschadensliquidation , in: Juristische Arbeitsblätter (JA) 2005, pages 28–31.
  • Leonhard Hübner, Adam Sagan: The demarcation of contracts with protective effect in favor of third parties and third party damage liquidation , in: Juristische Arbeitsblätter (JA) 2013, pages 741–747.
  • Thomas Henn: On the raison d'être of the so-called "third party damage liquidation" , University of Heidelberg, dissertation 2010, Duncker & Humblot, Berlin 2011, ISBN 978-3-428-13514-1 .
  • Christin Horlach: Referendarexamensklausur - civil law: third party damage liquidation and disturbed joint debt - fall under the ferris wheel , in: Juristische Schulung (JuS) 2009, pages 242–246.
  • Daniel Iden: Inclusion of third parties in debt relationships and third party claims liquidation , Journal for Legal Studies (ZJS) 2012, 644 (PDF file) [1] (PDF; 111 kB).
  • Hans-Ulrich von Schroeter: The third-party damage liquidation in European private law and in German conflict of laws , European university publications 1995, ISBN 3-631-48354-6 .

Web links

Individual evidence

  1. ^ Dieter Medicus : Civil law. A presentation for exam preparation, arranged according to the requirements. Heymanns, Cologne 1968. 23rd, revised edition with Jens Petersen : Vahlen, Munich 2011, ISBN 978-3-8006-3908-3 , § 33 (Problems of damage law) No. 842 f.
  2. BGHZ 51, 91 (96); previously: BGHZ 40, 91.
  3. BGH NJW 1985, p. 2411 f.
  4. BGHZ 49, 350 (354); BGH NJW 1968, 1929 (1931) and 1977, 2073 (2074).