Lost profit
Lost profit ( Latin lucrum cessans ) is a term used in tort law . Loss of profit includes all pecuniary advantages that were not yet part of the property of the injured party at the time of a damaging event, but which would have accrued to him without the damaging event. In other words, no existing property is damaged or withdrawn; rather, the injuring party prevents the injured party from acquiring an opportunity, which is why he misses an increase in property.
In contrast, it is positive damage if an already existing asset is reduced or destroyed and the injured party has to make expenses for the damage repair.
If, for example, an interrupted power supply brings the machines to a standstill and production is not possible as a result, the resulting damage is referred to as lost profit . If the machines themselves are damaged by the interruption of the power supply, this is positive damage .
German law
Loss of profit is part of every claim for damages according to the German law on damages according to § 252 BGB . The standard has a clarifying meaning, because the obligation to compensate for lost profit results from § 249 sentence 1 BGB. The profit that could be expected with probability after the normal course of events or after the special circumstances, in particular after the arrangements and precautions taken, is deemed to be lost. This does not include profit that could have been achieved through illegal activities. Dogmatically, the lost profit belongs to the indirect damage . In the example of an interrupted power supply, this is the profit that the injured party would have likely made with the parts that were likely to have been produced during the business interruption . The amount of the lost profit can be estimated by the court according to § 287 ZPO . A full proof is not required.
The amount of lost profit is regularly determined by an expert report. The profit that the injured party would have likely and expected to have achieved during the business interruption is to be assessed by an expert.
Loss of use as a form of business interruption damage occurs, for example, and is to be calculated by an expert insofar as a motor vehicle that is essentially used for acquisition has been damaged.
Austrian law
The distinction between lost profit and positive damage is particularly important for the degree of culpability: lost profit is only to be compensated for in the case of gross negligence ( i.e. in the case of willful intent or gross negligence ), positive damage for every degree.
In the case of bilateral business-related transactions (both contracting parties act as entrepreneurs ), the compensation according to § 349 UGB always includes positive damage and lost profit.
