Immaterial damage

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As non-material damage (including non-pecuniary damage ) is a harm defined that no financial loss is, not monetary value of legal protection , but concerns for example the body, freedom or honor.

Germany

Under German law, non-material damage is only to be reimbursed if the law expressly stipulates it for this case ( Section 253 (1) BGB ). Intangible damage is eligible for compensation in the case of liability arising from contractual and tortious claims as well as strict liability . On the other hand, the damaging party does not have to replace a pure interest in affection .

The most important application for immaterial damage is compensation for pain and suffering , which can be considered as a claim in the event of a violation of highly personal legal interests such as life, limb, health or sexual self-determination (Section 253 (2) BGB).

However, there is an increasing commercialization of non-assets. For example, it is sometimes demanded that the person who is on the way to the theater performance with a valid and pre-paid ticket and who has suffered an accident through an accident, who instead has to visit the doctor, should not have to counter that the enjoyment conveyed by the theater performance does not come through Section 253 (2) BGB should be covered. The price of the card expresses the value of seeing the intangible good of the imagination from a certain place, that is, it is commercialized. The Federal Court of Justice has already taken up this tendency in the so-called "sea voyage case", in the case of compensation for loss of use and "lost vacation".

Austria

In Austrian law, the legal basis for this is in § § 1293  ff. ABGB , which, however, also provide for restrictive restrictions on compensation for non-material damage.

The ruling of the European Court of Justice in the request for a preliminary ruling from the Linz Regional Court represented a breakthrough in compensation for non-material damage . For the first time, compensation for non-material damage was also in Austria, based on EU Council Directive 90/314 / EEC of June 13, 1990 possible due to lost holiday joy.

literature

  • Johannes Ady: Claims for compensation due to immaterial losses . Mohr Siebeck, Tübingen 2004, ISBN 3-16-148510-6 (also: University of Erlangen-Nürnberg, dissertation 2003).
  • David von Mayenburg : The measurement of the incommensurable: Ways to determine the compensation for immaterial damage using the example of compensation for pain and suffering . Duncker & Humblot, Berlin 2012, ISBN 978-3-428-83750-2 .
  • Claudia Schubert : The reparation of immaterial damage in private law . Mohr Siebeck, Tübingen 2013, ISBN 978-3-16-150767-0 (also: University of Kiel, habilitation thesis 2010).

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 2015, ISBN 978-3-8006-3908-3 , Rnr. 822-833.
  2. ^ BGH NJW 1956, 1234.
  3. ↑ BGHZ 40, 345; 45, 212.
  4. ↑ BGHZ 63, 98.
  5. ↑ ECJ, March 12, 2002, Case C-168/00 , Simone Leitner v TUI Deutschland GmbH & Co. KG
  6. ↑ Directive 90/314 / EEC