The damage (also outdated pity , from Middle High German shame ) is any tangible or intangible loss which a person or thing by an event suffers. The terms damage and damage stand for inflicting or suffering damage as well as synonymous with the damage itself.
Damage is always an involuntary loss that someone suffers from their protected legal interests . The term is therefore generally both an economic and a legal one . It can stand for the partial destruction or defect of property ( property damage ) as well as for the physical or health impairment of people ( personal injury ). Damage thus includes both pecuniary damage, i.e. the disadvantage that can be expressed in terms of money or goods of value (obligations), as well as non-material or non-material damage to property (impairment of honor). According to the difference hypothesis , the financial loss is the difference between the financial position of the injured party, as it has arisen as a result of the damaging event, and his financial position, as it would exist without this result, if the compensation claim itself is not taken into account. The damage incurred can consist not only of losses or other asset reductions, but also of lost profit . In this case, the injured party is granted an increase in assets that he had not yet realized.
Damage can take various forms and for various reasons. The damage can be financial or non-financial. Material damage can be based on the type of damage, for example in construction , electronics, vehicle or engine damage as well as forest and field damage , and according to the cause of the damage, e.g. B. be divided into lightning , fire or moisture damage. The extent of the damage or the necessary replacement is recorded with partial and total losses .
- An asset is a measurable in money material damage can occur. According to (1) of the German Civil Code (BGB), there is usually only a monetary replacement for this financial loss. According to the BGH , compensable financial loss also includes useless vacation time , the loss of the ability to use a motor vehicle or the temporary loss of use due to disruption of the Internet .
- An intangible non-pecuniary damage should be replaced only in special situations and can be about personal injury , damage to health, libel or detention to be. If expenses arise from a non-financial loss (such as a hospital stay), then these in turn belong to the financial loss. There is a monetary compensation for the non-property damage only in the cases expressly mentioned by the law such as Abs. 2 BGB (compensation for pain and suffering etc.), BGB (compensation for lost vacation pleasure) and and GG (violation of personal rights ) . The phrase “ cheap compensation ” mentioned in the law already signals that no full compensation should be granted for immaterial losses.
A distinction is made according to the causal relationship between the event and the damage it caused
- direct damage : is the damage itself,
- indirect damage is consequential damage resulting from direct damage.
The right to damage in Germany is regulated in § BGB , without a legal definition of the term damage being offered. This is where the type, content and scope of compensation payments are determined. However, they do not form an independent basis for claims and are therefore only applicable if a claim for damages has arisen due to other regulations. The damage that is assumed in §§ 249 ff. BGB consists in the difference between the financial position of the injured party, as it has arisen as a result of the damaging event, and his financial position, as it would exist without this result if there were the claim for compensation itself remains unconsidered. The concept of damage is therefore not a pure legal concept, but an economic concept related to the legal system . Anyone who has to pay compensation has the duty to restore the same economic situation as it would have existed without the occurrence of the circumstance that made the compensation liable. So he has to face the injured party economically as it would have been without the damage. This means that there is the principle of total repair , regardless of the degree of fault, to replace the entire damage.to
The damage is measured in principle according to the actual decrease in assets and the actual lack of asset increase. As a rule, it has to be calculated specifically . In some cases, however, an abstract calculation is also possible, which is not based on the reduction that actually occurred, but on the "normal course of events" and the typical average loss. This is e.g. B. the case in the replacement of lost profit according to § 252 sentence 2 BGB. Here the injured party can either claim the actual lack of increase in assets (concrete damage calculation), or the lack of increase in assets that would have occurred after the usual course of events (abstract damage calculation). An abstract calculation of damage can also be found in(2) of the German Commercial Code.
A damage calculation is very difficult due to the difference hypothesis, since it often fails because of an exact determination of the assets after the damaging event and a hypothetical asset situation without damage occurring. In order for a temporary loss of use to be eligible for compensation, the BGH has set requirements for the assets:
- the asset must be commercialized ,
- the loss of use must be "palpable" for the injured party,
- it must be an object-related intervention and
- the loss of use of luxury goods (swimming pool, fur coat, motor sports boat) does not represent a compensable financial disadvantage.
The assessment of damage is often problematic because no uniform assessment standard exists or is not possible. Terms such as high damage , minor damage or positive damage also do not allow a comparable statement to be made about the value of damage. Therefore, the so-called normative concept of damage applies in damage compensation law . To take into account are dispersed damages , not directly to a loss event must be included, but their follow-up costs represent such as replacement bus or taxi bills of passengers after blocking a railway line .
In general, however, the value of a loss can be described as the present value, i.e. as the sum of future and present-related partial losses. In practice, it is possible to model the change caused by the damage or the damaging event, i.e. the elimination of positive and the increase in negative future payment flows as a series of payments and to add up their present values. The net present value or discounted cash flow model , possibly supplemented by a purchasing power adjustment, is ideal for this.
In principle, everyone has to bear their own damage, especially damage that has occurred by chance (“casum sentit dominus”). According to this principle, the owner bears any damage caused by accidental loss himself ( BGB). He is compensated for damage either by insurance or by claims for damages against the damaging party or third parties. The obligation to pay damages to the injured party requires a special legal basis by law or from a contractual relationship.
- Statutory claims for damages exist in contract law (in particular § , , , , , , , , BGB), in tort law (§ ff.BGB), in property law ( BGB), in family law (§ , BGB) and in inheritance law (§ , para. 2, BGB).
- Contractual claims for damages can oblige one or all contracting parties to pay damages if a certain event occurs. For this, there must be a contractual obligation between the injured party and the injuring party.
In both cases, it is required that any damage incurred must be based on a violation of the law (causality).
Under certain conditions, the damage caused is attributed to the damaging party, so that he has to pay compensation. In this context, the damage mitigation obligation of the injured party and the liquidation of third-party claims in the event of a breakup between the claimant and the injured party are important. In the shipping sector , any damage that may have occurred is examined with the help of the declaration . The area of law that deals with the transferability of the damage is the law of damages .
- In the case of in rem restitution , the situation that would have existed without the damaging event must be restored. It concerns financial and non-financial loss.
- If the restitution in kind is not possible, unreasonable or insufficient, compensation will be made - only in the case of financial loss .
- According to the legal definition, “the profit which could be expected with probability after the ordinary course of events or after the special circumstances, in particular after the arrangements and precautions taken” (§ 252 S. 2 BGB) is deemed to have been lost.
The concept of damage is crucial for any kind of life insurance in which the insured event occurred event occurs when the insured and the insured has incurred a loss. In the event of liability damage, the person who caused the accident is obliged to compensate the accident victim for the damage sustained as a result of the accident in accordance with Section 249 of the German Civil Code. The victim of the accident is to be positioned as he would stand if the accident had not occurred. In the event of a liability claim, the injured party is replaced by the liability insurance of the party involved in the accident (Section 3 of the Compulsory Insurance Act). There does not have to be an identity between the damage that has occurred and the insurance benefit; an insurance benefit can also be lower than the damage that has occurred. One speaks of a total loss z. B. if the restoration of the damaged vehicle is either not possible ( technical total loss ) or uneconomical ( economic total loss ).
Austrian law is based on a broad concept of damage. According to ABGB a pity (sic) is "any disadvantage that has been inflicted on someone in terms of property, rights or his person". Special liability situations (in Austria: Public Liability Act, Employee Liability Act, etc.) and strict liability can modify this system.
In Switzerland, too, property damage consists of the loss of assets resulting from the damage, destruction or loss of an item. The unforeseeable event leading to the damage is referred to as "injustice". It is controversial whether usage disruptions or functional impairments are property damage. Injury or killing of an animal is also property damage. The lost profit, for example due to a loss of production ("Chômage") when a power cable is broken, is indirect property damage.
- damage In: WAHRIG.digital - German Dictionary , Wissen Media Verlag GmbH, Gütersloh / Munich of 2005.
- Hans Möller, Ernst Bruck, Commentary on the Insurance Contract Act and the General Insurance Conditions including Insurance Broker Law , 8th edition, 1980, p. 23. ISBN 978-3110082760 online .
- damage in: Duden - German explanatory dictionary , Bibliographical Institute & FA Brockhaus AG, Mannheim, of 2007.
- BGH, judgment of May 26, 2010, Az .: Xa ZR 124/09.
- BGH, judgment of September 30, 1963, Az .: III ZR 137/62
- BGH, judgment of January 24, 2013, Az .: III ZR 98/12
- Thomas Korenke, Bürgerliches Recht , 2006, p. 48.
- so-called difference hypothesis ; BGHZ 27, 181, 183/4.
- BGHZ 35, 396, 398.
- BGH, Great Senate for Civil Matters, decision of July 9, 1986, GSZ 1/86.
- BGH, judgment of September 30, 1963, Az .: III ZR 137/62.
- BGHZ 55, 146
- cf. for many: BGHZ 76, 179, 187.
- Joachim Knoche, BGB basic structures , 2004, p. 62.
- BGE 97 II 221 ff.
- Frank Saliger: Legal and economic damage , HRRS, Aug./Sept. 2012.