Performance damage

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The performance damage , especially in Austria also non-performance damage , describes in jurisprudence the damage that arises from the fact that an obligation is not or not properly fulfilled. In addition to the performance damage, there is also the fidelity damage .

If a creditor has a claim for damages in the amount of the performance damage , then he is to be treated as if the debtor had fulfilled the claim. So the fictitious situation in which the debtor would have fulfilled is compared with the real situation in which the debtor did not fulfill - the difference is the damage.

In Section 249 (1) of the German Civil Code it says:

"Anyone who is obliged to pay damages has to restore the condition that would exist if the circumstance that required compensation had not occurred."

The obligatory replacement would be a breach of duty according to Section 280 (1) BGB, e.g. B. the non-delivery of the purchased item by the seller (then together with § 281 BGB).

example

Karolin buys a Blu-ray player from Valerie for an inexpensive 150 euros. After the contract was signed, Valerie changed her mind and refused to deliver the device. Karolin waives the service, but does not withdraw from the contract. Instead, she buys the same Blu-ray player from the cheapest retailer she can find for 200 euros.

  • If fulfilled : The seller would have delivered. The buyer would have received a Blu-ray player. The buyer would have paid 150 euros.
  • Without fulfillment : The seller did not deliver. The buyer received a Blu-ray player. The buyer has paid 200 euros.

The performance damage is therefore 50 euros.

Demarcation from fidelity damage

The compensation for the performance damage aims to put the injured party as it would be if the other party had properly performed. Compensation for fidelity aims to put the injured party as it would be if the legal transaction had never occurred.

The amount of the performance damage is based on the positive interest , the amount of the loss of trust based on the negative interest . In some cases, the negative interest can also go beyond the positive interest, if, for example, investments have been made in confidence in the existence of a contract that go beyond the interest in the fulfillment of the specific contract. However, according to Section 122 (1) BGB, the amount of the fidelity damage to be paid is limited to the positive interest. In the case of the liability of the representative without power of representation ( falsus procurator ) according to § 179 Abs. 2 BGB, the amount of the claim for damages is also limited to the positive interest. The existence of these limits already shows that the negative interest must be able to exceed the positive interest.

literature

  • Christina Maslow: The protection of the immaterial performance interest in the event of a breach of contract through damages: a comparative study on the basis of German and English law , dissertation, Albert-Ludwigs-Universität Freiburg, 2014, Mohr Siebeck, Tübingen 2015, ISBN 978-3-16-153366 -2 .
  • Georg Zander: The insurance of the fulfillment interest of the private client: an investigation into the feasibility of property-related insurance protection , dissertation, University of Konstanz, Konstanz, 2017, Baden-Baden: Nomos, 2018, ISBN 978-3-8487-4696-5 .