Challenge Formula

from Wikipedia, the free encyclopedia

The challenge formula is a liability standard that has been developed by the case law of the Federal Court of Justice (BGH) in the context of traffic obligations under tort law . It is applied to the so-called challenge cases in the context of extended liability according to § 823 paragraph 1 BGB . These are characterized by the fact that the actions of an injuring party only lead to damage through the detour of a decision by the injured party or a third party that is not intended by the injuring party.

"According to this, someone who challenges another to self-endangering behavior through accusable actions can then be obliged to compensate this other person for the damage resulting from the increased risk as a result of the increased risk, if his will is based on at least a reasonable motivation was created. "

- BGH NJW 2012, 1951

An example case should clarify this: Road user S flees in a grossly negligent manner at top speed from a police check. During the escape trip he injured the policewoman P, whereupon her colleagues start the chase. After a wild ride, S is forcibly stopped by the police. On the occasion of this event, several other vehicles are damaged by the police vehicles.

The question arises whether the action of the S was causal for the damage done to the vehicles so that this can be attributed to him. According to the principles of the adequacy theory of civil law, which limits the questions of causality and imputation, it could be concluded that the injuring party S cannot be accused of liability because the damage incurred, from the point of view of the normal objective view of life, lies outside of any experience and expectation and S the vehicles has not damaged itself. Liability under Section 823 (1) BGB would be denied.

In order to resolve such a case, a check is made to determine whether the breach that has occurred is still within the scope of the protective purpose of the standard in Section 823 of the German Civil Code (BGB) and can be attributed to the injuring party as a result of liability. The BGH attaches liability claims to the following prerequisites: It is typical of a challenge when the prosecution has created an increased risk for the legal interests of the persecutor or third parties, which must be reasonably and appropriately weighed up in the context of the urgent requirements to be taken into account. The typical reaction of the persecutor in cases of persecution or rescue arises from the behavior of the persecuted because it has been challenged and leads to the pursuit. In this respect, there is then a “favorable reaction” to an extraordinary pattern of action. The persecuted person, on the other hand, subjectively expects to be persecuted and knows that there is an increased risk of life. To differentiate: There is no liability even under Section 7 of the StVG if the person persecuted could not notice the persecution.

Under the conditions mentioned, the BGH recognizes the so-called psychological causality in challenging cases , which accordingly leads to the attribution of the offense.

literature

  • Heinz Koriath : Causality Condition Theory and Psychological Causality , University of Göttingen, Dissertation 1986, Schwartz 1988, ISBN 3-509-01452-9 .
  • Dirk Looschelders : The co-responsibility of the injured party in private law , Jus Privatum 38, Mohr Siebeck, Tübingen 1999 (habilitation thesis), ISBN 3-16-147168-7 . P. 432 ff.
  • 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 . P. 338 ff.
  • Fedor Strasser: The attribution of rescue, escape and persecution behavior in criminal law , (At the same time: University of Konstanz, dissertation, 2007), Duncker & Humblot, Berlin 2008, ISBN 978-3-428-12785-6 .
  • Min Zhang: Active psychological causality in tort law , dissertation, Georg-August-Universität zu Göttingen 2015, Duncker & Humblot, Berlin 2016, ISBN 978-3-428-54847-7 .

Remarks

  1. ^ A b Dieter Medicus : Civil law . 19th edition Carl Heymanns Verlag, Cologne 2002, ISBN 3-452-24982-4 , § 25 II No. 7.
  2. ^ Case abbreviated according to BGH NJW 2012, 1951.
  3. ↑ BGHZ 57, 25 ff. (31) and BGHZ 132, 164; BGH NJW 1993, 2234.
  4. ↑ BGH NJW 1990, 2285.
  5. ↑ Further cases with different outcomes : BGHZ 58, 162 (so-called sidewalk case : damage to a sidewalk by vehicles driving around an accident site; the BGH denies the liability of those who caused the accident due to the lack of a challenge) and BGHZ 63, 189 ( juvenile arrest case: minors evade police arrest jumping out of the toilet window, whereupon a policeman chases him and injures himself; in the literature, the result of the BGH remained very controversial, since the BGH had ruled the other way around in similar cases (see BGH NJW 1971, 1982; 1976 568)).