In rem restitution

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In rem restitution ( Latin : natura , originally; restituere , to restore) is a legal term .

Its meaning is consistent with the wording of Section 249 (1) BGB :

Anyone who is obliged to pay compensation has to (re) establish the condition that would have existed if the circumstance that required compensation had not occurred.

So z. B. In the event of property damage, the injured party can demand that the injured party repairs the damaged item. Despite the ambiguous wording, § 249 BGB is not a basis for claims , but only regulates the type and scope of a claim for damages. Basically, the claim must result from another standard (e.g. from § 823 BGB).

Relationship to other forms of compensation

In German law, in rem restitution takes precedence over other forms of compensation (compensation according to §§ 251, 253 BGB). This is a specialty z. B. in comparison with the Anglo-Saxon legal systems, which do not have such a priority. The German approach can be explained historically. When the BGB was being drawn up, the main discussion was the removal of a thing as a case of damage - less property damage and bodily harm that are in the foreground today. In the case of removal, in rem restitution (= surrender) is the simplest and most economically advantageous form of compensating for the damage. At the same time, it prevents someone from taking something from someone else in the manner of a "forced purchase" that the latter does not want to give up in order to compensate him for value . Other legal systems must resort to punitive damages and other means to prevent this.

Exceptions to the priority of in rem restitution

Section 249 (2) of the German Civil Code (BGB) regulates in the first sentence that the creditor can demand monetary compensation instead of restitution in kind in the event of injury to persons or damage to property. When proceeding in accordance with Section 249 (2) BGB, the injured party has two options. He can eithersettleon the basis of the repair costs anddemandthe repair costs, i.e. the repair costs and the depreciation , or he can purchase an equivalent item and demand the replacementcosts,i.e. the replacement value minus the residual value of the damaged object. As a rule, the injured party has to choose the cheaper one of the two options mentioned. However, the case law has a certain affective interest forthe injured party.

scope of application

In rem restitution in accordance with Section 249 (1) of the German Civil Code (BGB) and monetary replacement in accordance with Section 249 (2) sentence 1 of the German Civil Code (BGB) take place in the case of material as well as immaterial damage.

Austria and Liechtenstein

Section 1323 ABGB also provides for restitution in kind for Austria (also Section 1323 Liechtenstein ABGB ).

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