Compensation
Under compensation (often in principle, and in Austria only in the spelling damages to be found) refers to equalization of damage .
Concept of damage
In the sense of the German Civil Code , damage is understood to mean any loss of legal interests due to a specific event. This includes both pecuniary damage and immaterial damage, § 253 BGB. However, different rules apply to the replacement of material and immaterial damage in German law: Compensation in money can only be demanded for immaterial damage if the law explicitly orders this (in particular Section 253 (2) BGB). In the case of financial loss, on the other hand, in the event of personal injury or damage to an item, the aggrieved party can demand cash compensation instead of being made in kind ( Section 249 (2), sentence 1 BGB). The same applies if the natural production is impossible, is not sufficient to put the injured party in the same position as before the damaging event ( Section 251 (1) BGB) or requires disproportionate expenses ( Section 251 (2) BGB).
Claim for damages
The §§ 249 ff. BGB only determine the nature, content and extent of compensation for damage. Whether a damage is to be compensated at all and by whom is determined according to a separate claim basis from the actual damage compensation law .
Claims for damages can result from the law or from a contract . German civil law first distinguishes between statutory and contractual claims for damages based on the justification. In principle, unlawful and culpable action or omission is a prerequisite for liability . Exceptionally, no-fault guarantee liability or strict liability applies. Fault is a benchmark for own unlawful behavior; strange behavior can only be attributed in exceptional cases. The claim for damages is aimed at compensation for the measurable damage. In addition, in the event of personal injury, you may be entitled to appropriate compensation for pain and suffering (especially in Austria: compensation for pain and suffering ). The liability for damages can be countered by contributory negligence on the part of the injured party. The liability of third parties does not relieve jointly liable parties in relation to the injured party. Several parties may be jointly and severally liable.
Contractual claims for damages
For breach of a main or ancillary service obligation
Claims for damages can result from an agreement ( contract ) between the claimant and the opposing party. A contract can establish obligations for one or both contracting parties, for the fulfillment of which we are liable. These are called performance obligations .
In accordance with Section 433, Paragraph 1, Clause 1 of the German Civil Code, the seller of an item is obliged by the purchase contract to hand over the item to the buyer free of defects ( provision of possession ) and to obtain ownership of the item (transfer of ownership ).
If the seller fulfills these obligations late or not at all, the secondary obligation to pay damages occurs in addition to the primary obligation to perform. Either the performance damage (e.g. default interest , § 288 Paragraph 1 BGB) or the fidelity (e.g. as a result of follow-up orders placed in reliance on the delivery, § 284 BGB) must be reimbursed.
Out of violation of a duty of consideration (also duty to protect or other duty of conduct )
In addition to fulfilling the performance obligations, both parts of an obligation (in particular a contract, but also in the case of legal obligations) have to meet numerous so-called consideration obligations. These result from Section 241 (2) of the German Civil Code (BGB) and oblige each part of the contractual relationship to take into account the rights, legal interests and interests of the other part . Obligations are not limited to the bringing about of a possibly owed performance success, but are generally governed by the principle of good faith § 242 BGB. The same also applies to contractual obligations without primary performance obligations, which only justify obligations of consideration ( called special connection by the highest court rulings ). A debt relationship with obligations from § 241 Abs. 2 BGB can according to. Section 311 (2) and (3) BGB also arise before or without the conclusion of a contract. But then it is a legal obligation. This is the basis for liability from culpa in contrahendo .
Even if the obligations i. S. d. According to Section 241 (2) of the German Civil Code (BGB), the injured party is entitled to compensation. However, it is not his interest in equivalence (interest in the equivalence of performance and consideration) that is protected, but his interest in integrity , i.e. his personal and property status quo . The general bases for claims for damages due to a breach of a duty of consideration are standardized in Section 280 (1), Section 241 (2) BGB (compensation in addition to performance), Section 282 , Section 280 (1) and Section 241 (2) BGB (compensation instead of Power).
Since 2006, in special cases where the principle of equal treatment in labor law is violated, there has been a right to punitive damages .
An exhaustive list of duties of consideration cannot be made because they are too complex. Their scope and content depend on the respective purpose of the contract and normative criteria (custom, honest business dealings, etc.). The most important duties of consideration include performance obligations, duties to provide information and duties to protect .
Contractual liability for third party damage
The so-called third-party liability represents a special case of contractual liability for damages: a disadvantage is not inflicted on the contractual partner, but on a third party who is not involved in the contract. There are different cases here:
If, for example, as a result of mold growth in the rented apartment (initial defect in the rented property), it is not the tenant himself but his child who becomes ill, the lessor's liability is based on whether he had to expect the child to live in the apartment; In the case of family members , this has to be answered in the affirmative; the situation can be different in the case of unauthorized subletting to third parties. (" Contract with protective effect in favor of third parties ")
Another case of third-party liability is the third-party damage liquidation .
Statutory claims for damages
Tort law of the BGB
Statutory claims for damages with regard to the scope of the unauthorized actions are standardized in corresponding laws (e.g. §§ 823 to 853 BGB).
The most important case is tort law . Section 823 (1) of the German Civil Code (BGB) regulates: "Anyone who intentionally or negligently violates the life, body, health, freedom, property or any other right of another person is obliged to compensate the other person for the resulting damage." Section 823 BGB only protects the absolute legal interests. Pure pecuniary losses are not covered by § 823 BGB.
The other rights are recognized as including so-called framework rights such as the right to the established and exercised commercial enterprise , general personal rights , legitimate possession , intellectual property and family rights . Primary financial losses are not eligible for compensation.
In these laws it is determined by means of the conditional program that for an offense (e.g. who ... unlawfully violates ... ) the legal consequence of damages occurs ( ... is ... obliged to compensate ... damage ).
According to Section 823, Paragraph 2 of the German Civil Code, the obligation to pay compensation also applies to those who violate a law that aims to protect someone else. These so-called protective laws include certain criminal laws in the StGB (e.g. against homicides , bodily harm and property damage ) as well as numerous other laws (e.g. on product liability ). If such a protective law has been violated, the following pure financial losses resulting from the violation must also be compensated.
According to Section 826 of the German Civil Code (BGB), pure pecuniary damage is also eligible for compensation if the damage was immoral and intentional.
Product Liability Act
The legally regulated claim for damages of product liability refers to the liability for damages against the manufacturer of a product for damage that the end user has suffered as a result of a defective product. It is regulated in the Product Liability Act (ProdHaftG). Product liability does not require a contract between the manufacturer ( § 4 ProdhaftG) and the end user, nor is any fault necessary for the liability of the manufacturer ( § 1 ProdhaftG). Rather, the end user should be protected from certain dangers emanating from a defective product ( Section 3 ProdhaftG) regardless of whether the manufacturer is at fault, even if these dangers only became apparent after the product was placed on the market. So it is a pure strict liability . Liability for compensation for the dangers of products occurs in the event of death, injury to the body or health of a person or damage to property ( Section 1 ProdhaftG). Liability for damage to items is limited in the Product Liability Act to items other than the defective item itself, and the other item must, by its nature, be intended for private use or consumption and must have been mainly used by the injured party for this purpose. Pure financial losses are not covered by the Product Liability Act.
Road Traffic Act
Further important legal bases for claims for damages result from the Road Traffic Act (StVG). According to § 7 StVG, the owner is liable regardless of fault. This is a pure strict liability for certain dangers that have occurred during the operation of a motor vehicle. In § 18 StVG the liability of the driver of a vehicle is regulated. His fault is presumed by law. However, he can exculpate himself if he can prove that he did not cause the damage caused intentionally or negligently. According to both standards, liability arises in the event of death, injury to the body or health of a person or damage to property.
Statutory Liability for Third Party Damage
The §§ 844, 845 and 846 of the Civil Code dealing with the liability for third party damage. So z. B. acc. Section 844 of the German Civil Code (BGB) granted the direct survivors (third parties) of a killed maintenance debtor “compensation” in the form of their lost maintenance.
fault
Liability only in case of own negligence
Both bases of the liability for damages regularly presuppose fault : only those who culpably deliver too late are liable for the damage caused by delay ( § 286 Paragraph 4 BGB); only those who culpably injure someone else's property are liable for replacement of the damaged item ( Section 823 (1) BGB). Fault is described in Section 276 of the German Civil Code as intent or negligence (Paragraph 1), negligence is in turn defined as neglecting the due diligence required in traffic (Paragraph 2): Anyone who does not observe this duty of care is liable for the resulting damage.
Liability for third-party negligence and strict liability
In principle, liability is only assumed for one's own fault, but this principle is broken in several ways: Under certain conditions, culpable actions by assistants are ascribed to the client as their own, but in individual cases it depends on the liability basis. The actions of innocent children or the behavior of animals can also create liability for damages for the persons subject to supervision .
In the case of assistants , the decisive factor is whether the obligation to pay damages is based on a contractual or legal basis: who is a vicarious agent , e.g. B. a subcontractor , instead of him commissioned with the fulfillment of a contract, is liable for his fault as for his own ( § 278 BGB): the contractual partner can rely on the quality assurance of his partner. Where such contractual relationships are missing, there is no reason for such increased consideration: Section 831 (1) BGB limits the obligation to admit damage caused by vicarious agents ( principal's liability) to cases in which the "principal" cannot prove that he is diligent about the assistant selected and supervised.
Depending on their age and development, children must be supervised at different levels of intensity. Those responsible for supervision (parents, educators, teachers, etc.) are then liable for the consequences of harmful behavior on the part of the children if they cannot prove adequate supervision ( Section 832 (1) sentence 2 BGB): the sentence "Parents are liable for their children" is therefore wrong in its abbreviation: It is correct that legal guardians are only liable if their children cause damage that would not have been done with proper supervision. If the duty of supervision is fulfilled and the child is under 7 years old (not capable of tort), it is not liable. If it is already 7 years old, the child is liable. If a title is available, the injured party can foreclose for 30 years in the course of an insurance in lieu of an oath (debtor testifies that he has no funds), which is signed by the guardian. In the case of liability issues in motorized and flowing traffic, the age of liability for children increases to 10 years, except in the case of intent.
The same applies to the liability of the animal owner: The owner of a commercially used animal can object that he has fulfilled his duty of supervision ( § 833 BGB). Both cases therefore presuppose fault, even if the deficiency in supervision is assumed by law; this “presumption of fault” can be refuted by the person responsible - this eliminates his liability. This does not apply to the owner of a luxury animal, i. H. of an animal that is not kept commercially. Here animal owner liability is a special case of strict liability .
This is different only in the cases of real strict liability : In these cases, in particular the legal claims for damages from the Road Traffic Act , the injured party only needs to prove that he was injured while operating the vehicle of the injuring party in order to avoid the liability of the vehicle owner in accordance with. § 7 StVG - however (according to § 12 Abs. 1 StVG) limited in terms of amounts - to be justified. The owner could only defend himself by arguing that the accident was due to force majeure; negligence, such as a driving error, is not necessary for his liability for damages.
In a comparable way, there is no need to be at fault for damage that occurs, for example, in the operation of railways (rail or suspension railway, Section 1 HaftPflG ) or in the area of product liability as a result of product defects ( Section 1 ProdHG). Here, as in the area of road traffic, the hazard set when the source of danger was opened up constitutes a special duty of care and makes no fault of any kind.
Causality and causal relationship
In order to be liable for damages, there must be a connection between the actions of the injuring party and the damage . This imputation connection is referred to as causality . In compensation law, a distinction is made between liability-justifying (the infringing act leads to a violation of the legal interest) and liability-fulfilling (the violation of legal interest leads to damage) causality.
Substantive legal meaning
In the scientific sense, causality is understood to mean any prerequisite for the onset of success, if it were not successful, success would also be lost ( condicio-sine-qua-non formula ). This principle leads to excesses in civil liability law: The motorist who drives at excessive speed to the place where the accident occurs, but adheres to the traffic rules at the level of the accident site, would be the cause of the accident in this sense, as he with (always) proper behavior at the time of the accident would not have been at the scene of the accident (so-called extended equivalent causality ).
The jurisprudence corrects these unsatisfactory results with the requirement of objective sanity or social adequacy : Civil and criminal liability only sets in if the precondition leads to success under normal conditions without the addition of particular unforeseeable causes. But this criterion is also fuzzy: If you use a street that is only allowed for local traffic, a traffic accident occurs between two vehicles passing through , which injures the passenger. According to the condition theory, the accident is to be avoided by choosing an approved route; Even according to the adequacy theory, this damage could be attributed to the driver who consciously violates the StVO. The doctrine of the protective purpose of the standard avoids this unreasonable result by assuming that the aim of the blockade for through traffic, in addition to general traffic safety, was specifically to avoid accidents that are caused by increased traffic.
This doctrine of the protective purpose of the standard was initially developed in connection with Section 823, Paragraph 2 of the German Civil Code: The violation of protective laws is only relevant to liability if the specific purpose of the violation was to protect the infringed legal interest. This basic idea is also carried over to contractual claims: The seller of a used vehicle had untruthfully guaranteed freedom from accidents. In the event of an accident caused by the buyer alone, the vehicle will be totally damaged and he will be injured. The buyer is entitled to repayment of the purchase price ( § 346 Paragraph 1 BGB) step by step against compensation ( § 346 Paragraph 2 BGB); He cannot claim compensation for his accident-related personal injury and the burden of accident-related obligations or damage, as these claims are accident-related but not caused by deception.
Process-related importance
In civil proceedings, different rules apply to liability-establishing and liability-completing causality . While the injured party generally has to provide full evidence of the former ( Section 286 of the German Code of Civil Procedure), the court is more free to determine the causal relationship between the liability and the damage incurred in accordance with Section 287 of the German Code of Civil Procedure. The criminal justice judge can only determine a liability-compliant causality if he is convinced of this causal connection. However, fewer demands are made on the formation of convictions. It is sufficient, depending on the situation of the individual case, a higher or significantly higher probability for the causal connection alleged by the injured party.
Section 287 of the ZPO not only makes it easier for the injured party to provide evidence, but also to ease the burden of proof. If the asserted claim is fundamentally certain and if only the amount of a loss composed of many small individual items is in dispute, the claim may not be completely dismissed, but the judge must estimate the damage as far as possible according to § 287 ZPO. The judge must judge at his due discretion whether at least an estimate of a minimum damage is possible. In this way it is avoided that the injured party goes completely empty-handed, even though the injuring party has an obligation to pay compensation.
In the event of difficulties of proof, for example in the case of medical or producer liability, special rules on the burden of proof apply in favor of the injured party .
illegality
After all, the damaging party must have caused the damage unlawfully. Illegality means that the perpetrator's behavior contradicts the standards of conduct of the legal system. In civil law, the illegality of direct violations through positive action usually follows from the violation of legal interests. As an exception, the illegality must be positively determined if this does not already result from its violation due to the breadth of the legal facts. This is the case, for example, in the event of a violation of general personal rights (such as unauthorized photo depiction, etc.). In individual cases, the act can be justified by a justification such as self-defense ; then the illegality and consequently the obligation to pay compensation no longer apply. Indirect violations and omissions are only to be regarded as unlawful if the injuring party violates a legal obligation - e.g. B. a traffic safety obligation - has violated.
So-called lawful alternative behavior can pose problems here . If the injuring party would have caused the damage even if they had acted lawfully, the claim for damages may not apply.
Scope of liability for damages
Total restitution (total repair)
German law is governed by the principle of total restitution (also: total repair). The injured party should receive compensation for all of his damage. If the damaging party owes damages out of negligence or strict liability, this claim is not limited by liability limits: He is liable in an unlimited amount, unless special maximum liability limits are specified for strict liability (e.g. § 10 ProdHaftG). Swiss law, on the other hand, provides for a reduction in the obligation to pay compensation if the damaging party would be exposed to an emergency through full liability and he did not act at least with gross negligence (Art. 44 Para. 2 OR). Exceptions to the principle of total repair can also be found in German law for employee liability and the liability of minors according to Section 242 of the German Civil Code.
In rem restitution
German law on damages is characterized by the principle of restitution in kind. Damage is the difference between the actual condition and the condition that would exist without the damaging event ( Section 249 (1) BGB). Is z. B. a thing damaged or a body injured, the repair costs or the healing costs are to be reimbursed. It is not necessary to establish the state that existed before the damaging event (the so-called "status quo ante"), but rather the (hypothetical) state that would have existed if the damaging event had not occurred, which usually amounts to the same thing. The establishment of this state can be demanded not only in the case of financial losses, but also in the event of damage of any kind (e.g. damage to health, physical damage).
In contrast to the USA in particular, German law may not award the injured party with an “exemplary or punitive damages” claim for damages, but only compensate for the “disadvantage” inflicted on him by the injuring party.
Instead of in rem restitution, in the event of personal injury and property damage, the injured party has the right, at his discretion, to receive the amount required to restore the fictitious situation in cash ( Section 249 (2) BGB). This is also a case of in rem restitution insofar as the value of the money is also aimed at restoring the hypothetical state. This amount of money can be claimed even if it is actually not incurred (e.g. the repair costs for a motor vehicle without the repair actually being carried out).
As an alternative to the reimbursement of costs for the restoration of damaged items, h. M. restitution in kind takes place through replacement of a comparable item (a. A. case of damage compensation). Accordingly, the replacement value of a damaged item is to be reimbursed. Their new value is not reimbursable (exception: billing on a new vehicle basis for vehicles with the “melting of new value”). However, the injured party cannot simply be referred to the current value of the thing.
If it is not possible to restore the situation that would exist without the damaging event, or if it is not sufficient to indemnify or if the party liable for compensation does not carry out the restoration within a reasonable period, the compensation in kind will be replaced by monetary compensation. Damage compensation takes place e.g. B. in the replacement of the mercantile depreciation of damaged motor vehicles. In the case of damage compensation, the indemnification is generally limited to financial losses ( Section 253 (1) BGB), unless the law provides otherwise.
Calculating the damage is often difficult, especially in intellectual property law . That is why the case law has developed a model according to which the injured person can choose between three methods. Insofar as concrete damage can be proven, this can be claimed according to the normal principle of restitution in kind. Alternatively, profit skimming comes into question, whereby the injuring party must transfer the profit made to the injured party. Thirdly, the compensation can be calculated in the context of a license analogy “also on the basis of the amount that the infringer would have had to pay as reasonable compensation if he had obtained permission to use the violated right”: Section 97 (2) sentence 3 UrhG .
The most important case of compensation for damage that is not pecuniary damage is compensation for pain and suffering . Compensation for pain and suffering is granted from all liability bases in the event of injury to persons (e.g. § 253 Paragraph 2 BGB, § 8 Sentence 2 ProdHG, § 11 StVG).
In the context of reducing the claim for damages, the benefit sharing must be taken into account . The benefits incurred as a result of the damaging event are offset against the damage incurred. However, the mere causality of the advantage does not lead to a reduction in the claim for damages. The crediting must also be reasonable for the injured party, must not unreasonably exonerate the injuring party and the injured party should not make a profit from the claim. This leads to an evaluative consideration: B. Advantages such as an inheritance due to unlawful homicide are not taken into account, but saved expenses of the injured party (e.g. saved travel costs to the workplace in the event of occupational disability) do.
Contributory negligence and duty to mitigate damage
When calculating the damage in German civil law, the contributory negligence of the injured party and a breach of the duty to minimize damage by him, § 254 BGB are also taken into account .
The fault of the injured party in the occurrence of damage is compared with that of the injuring party in accordance with Section 254 (1) BGB. Contributory negligence is present if the injured party has disregarded the care that a sensible person expends in his own interest in order to protect himself from harm. According to this principle z. B. in the case of motor vehicle accidents, taking into account the mutual operational hazards, the proportion of fault is weighted. The injured party will only be reimbursed for that part of the damage that is attributable to the injuring party according to this weighting. If the injured party is jointly responsible, however, only in exceptional cases can the injured party be completely eliminated.
According to Section 254 (2) of the German Civil Code (BGB), the claim for damages can also be reduced if the injured party has not warned the injuring party about possible damage or its particularly serious consequences, or has not tried to avert or reduce the damage.
If a breach of the duty of care by third parties (partly) caused the damage, this has no effect on the injured party: he can turn to any of the accomplices ( § 830 BGB) or those responsible ( § 840 BGB) and claim full compensation from them, without incurring any claims to disadvantage the insolvency of a debtor. The legislature relocates this dispute to the camp of those obliged to pay damages ( Section 830 Paragraph 1, Section 840 Paragraph 1 in conjunction with Section 426 BGB). The injured party only has to be responsible for the behavior of third parties if they were his vicarious agents within the meaning of Section 280 BGB, Section 254 Paragraph 2, Sentence 2 BGB.
Flat rate claims for damages
A lump sum for claims for damages (including lump-sum damages or lump-sum damages) can also be contractually agreed between two parties. The purpose of a lump sum compensation is to provide the injured party with a minimum amount of compensation free of evidence. In this respect, it is a case of contractual liability extension, which is permissible both in individual contracts and in general terms and conditions. According to Section 309, No. 5 BGB, flat-rate damages in general terms and conditions are only effective if the damaging party is expressly permitted to provide counter-evidence in the terms and conditions that the damage did not occur at all or that the damage is significantly lower than the flat-rate and the flat-rate also applies to the ordinary course of events does not exceed expected damage. The industry standard is decisive for assessing the appropriate amount of a flat-rate claim.
The flat-rate damage fee should not be confused with a contractual penalty , the purpose of which, in contrast to the flat-rate fee, is to put pressure on the debtor and to secure the fulfillment of the contract by means of coercion.
Limitation of claims for damages
The respective limitation period is not regulated across the board in the law on damages, but is based on the rules applicable to the respective basis of the claim (e.g. claims for damages from the contract regularly 3 years from the end of the year, § 195 , § 199 Paragraph 1 BGB).
The beginning of the statute of limitations for claims for damages is based on the so-called principle of unit damage . If the injured party then wants to be able to claim against the injured party for damage that occurs later, he must obtain a declaratory judgment shortly after the occurrence of the first damage from the unlawful act, in which the liability of the debtor is determined on the merits becomes.
Income tax treatment of damages
Compensation paid
If someone pays damages, it must first be checked whether this payment can be assigned to a type of income. Depending on whether the payer has suffered the damage in the course of his activity as a farmer and forester ( Section 13 EStG ), as a trader ( Section 15 EStG), as a self-employed person ( Section 18 EStG), as a non-self-employed person ( Section 19 EStG), as Administrator of his capital income ( § 20 EStG), as administrator of his rental and leasing income ( § 21 EStG) or within the scope of his other income i. S. d. 22 of the Income Tax Act (EStG), the payment must be allocated to the corresponding type of income. The revenue earnings ( § 2 , para. 1, sentence 1 Nos. 1 to 3 ITA) these payments operating costs (set § 4 4 ITA para.) Is in the excess income (. § 2 , paragraph 1, sentence. 1, no. 4 to 7 ITA) these payments are business expenses (§ 9 EStG). However, a prohibition on the deduction of compensation payments from profit / income surplus can result from Section 4 (5) of the Income Tax Act (operating expenses that may not reduce the profit) and Section 12 of the Income Tax Act (non-deductible expenses).
Insurance premiums for protection against future liability for damages can also be assigned to one of the 7 types of income ( Section 2 (1) Sentence 1 No. 1 to 7 EStG) if there is a connection.
Compensation received
In the case of compensation payments received, it must first be checked whether these can be allocated to one of the seven types of income ( Section 2 (1) sentence 1 No. 1 to 7 EStG). The main thing here is what kind of damage is being replaced, e.g. B .:
- Damage to business assets (→ income from the corresponding profit income type)
- Compensation for the loss of business expenses (→ income from the corresponding profit income type)
- Also poor advice from a tax advisor, which means that the injured party has paid too much business tax (→ income from the corresponding profit income type)
- Loss of wages z. B. due to reduced employability (→ income from non-self-employed work)
If the payment can be allocated to a type of income, this income increases the profit (in the event that the payments received can be allocated to a type of profit income, Section 2 Paragraph 1 Clause 1 No. 1 to 3 EStG) or this income increases the income surplus ( In the event that the payments received can be assigned to a type of surplus income, Section 2 (1) Sentence 1 No. 4 to 7 EStG). In the first case, the payments are operating income ( Section 4 (4) EStG - reverse conclusion) and in the latter case, the payments are income ( Section 8 EStG). If the assignment of the payment to an income type can be affirmed, then the taxability is given. There is now the possibility that this payment is taxable but tax-free ( § 3 EStG). If the payment is taxable and tax-free, there may be a progression proviso ( Section 32b EStG).
Reference should also be made to the judgment of the Federal Fiscal Court, which on November 26, 2008, XR 31/07, determined that the compensation pension of a doctor to the widow of his patient, who reimburses the maintenance payments, is not taxable. In this case, it was not reimbursed for the lost pension ( Section 22 No. 1 EStG) of the deceased husband, but for the maintenance obligations to the widow that were lost with the death of the husband. Since spouses would not have to pay tax on maintenance payments received (with the exception of real splitting, which was not the case here), the compensation for the same is of course not taxable.
Refund, litigation and default interest are taxable investment income in accordance with Section 20 (1) No. 7 EStG if the main service is tax-free.
Legal situation in Austria
In the Austrian legal system the term compensation (without joints -S) is used. The basic rules of the law on damages according to Austrian law can be found in §§ 1293 to 1341 ABGB . Every disadvantage that is inflicted on someone in terms of property, rights or his person (§ 1293 ABGB) is damage. The same principles apply as in Germany, which means that the prerequisite for a claim for damages is causal, illegal and culpable action on the part of the injuring party. Contributory negligence on the part of the injured party must be taken into account in the same way. In Austria, too, there is strict liability for certain dangerous plants and facilities, regardless of fault .
A distinction is made between positive damage and lost profit and, with regard to illegality, between damage compensation ex delicto (tortious compensation) and compensation ex contractu (contractual compensation). In Austrian law, this is particularly important for the burden of proof, liability for assistants and liability for pure financial losses.
In contrast to the German law on damages, actually illegal behavior is required; It is to be checked whether the person in question has behaved as a true-to-scale, lawful person would have behaved. Damage to an absolutely protected legal asset alone does not always constitute an illegal act, since the damage to an absolutely protected legal asset only indicates the illegality.
Legal situation in Switzerland
Special liability for certain groups
Occupational groups with special responsibility are often subject to special regulations, see for example doctor's liability , attorney's liability or carer liability . Persons who can legitimately cause certain dangers are subject to strict liability .
Large companies often take out manager liability insurance for their board members . Managers can be held liable for enormous sums of money. Examples:
- In 2011 MAN demanded € 237 million in damages from former CEO Håkan Samuelsson because of a bribe affair.
- In 2009, Siemens received a total of around € 20 million in damages from nine former top managers (including the two ex-CEOs from Pierer and Kleinfeld ) for a bribery affair.
In such cases, manager liability insurance will usually cover the damage.
See also
literature
- Oliver Brand : Damages law. 2nd Edition. CH Beck, Munich 2015, ISBN 978-3-406-58998-0 .
- Hermann Lange , Gottfried Schiemann : Damages. 3. Edition. Mohr-Siebeck, Tübingen 2003, ISBN 3-16-147984-X .
- Frank Pardey: Personal Injury Calculation. 4th edition. CF Müller, Heidelberg 2010, ISBN 978-3-8114-3524-7 .
- Andreas Riedler : Study Concept Civil Law IV - Law of Obligations Special Part - Statutory Obligations . 5th edition. LexisNexis, Vienna 2018, ISBN 978-3-7007-7471-6 .
Web links
- Article 41 of the Swiss Code of Obligations
- German tort law (via juratexte.de ) - accompanying script for the lecture "Introduction to tort law of the Federal Republic of Germany" ( PDF format).
- Liability Act ( HaftPflG )
- Product Liability Act ( ProdHG )
Individual evidence
- ↑ Grüneberg in Palandt. BGB . 70th edition. 2011, Vorb v § 249 Rn. 9; the definition is not undisputed, cf. Schiemann in Staudinger - BGB, revision 2005, preliminary remarks on §§ 249-254, marginal no. 35 ff.
- ↑ Grüneberg in Palandt. BGB . 70th edition. 2011, Vorb v § 249 Rn. 1
- ↑ Palandt / Heinrichs , BGB, 66th edition. (2007), § 241, Rn. 6th
- ↑ In detail and listing a total of more than 100 special connections: Peter Krebs: special connection and extra-offense protection obligations. Munich 2000.
- ↑ BGH, NJW 1983, 998.
- ↑ BGH, NJW 1983, 2813 (2814).
- ^ Sprau in Palandt. BGB . 70th edition. 2011, § 1 ProdHaftG Rn. 8th.
- ↑ lawyer pages 24
- ↑ cf. Manfred Günther : "Almost everything that is right for young people", Berlin 2003, pp. 25 and 29
- ↑ BGH, judgment of November 4, 2003 - VI ZR 28/03 margin no. 14 ff.
- ↑ BGH, judgment of February 1, 2000 - X ZR 222/98
- ↑ Düsseldorf Higher Regional Court, judgment of November 16, 2005 - Az. I-15 U 66/05
- ↑ BGH, judgment of February 13, 1996 - VI ZR 402/94 = BGHZ 132, 47
- ↑ BGH, judgment of June 7, 1988 - VI ZR 91/87 = BGHZ 104, 323; Ekkehart Reinelt: Reversal of the burden of proof in the event of product defects NJW 1988, 2611
- ↑ K. Grechenig & A. Stremitzer, The objection of legal alternative behavior - legal comparison, economic analysis and implications for proportional liability, Rabels Zeitschrift für Ausländisches und Internationales Privatrecht (RabelsZ) 2009, 336–371. (link)
- ↑ Magnus in Dauner-Lieb / Langen, BGB , 2nd edition. 2012, § 249 Rn. 31 f.
- ↑ so z. B. BGH NJW 1992, 3096; see. on the differences between German and American legal traditions, for example Paul D. Carrington, Punitive Damages - The American Tradition Of Private Law. ( Memento from September 30, 2007 in the Internet Archive ) In: Humboldt-Forum Recht. HFR 2004, article 7, p. 1.
- ↑ so-called fictitious damage calculation based on expert reports, cf. Grüneberg in Palandt. BGB. 70th edition. 2011, § 249 Rn. 14th
- ↑ Grigoleit / Riehm, Law of Obligations IV. Law of Tort and Damage Law, 1st edition. 2011, para. 544
- ^ Oetker in Munich Commentary on the BGB, 6th edition. 2012, § 254 Rn. 30th
- ↑ Whether this means that Section 278 of the German Civil Code (BGB) is only applicable if there was a special legal relationship with the injuring party prior to the damaging event is highly controversial, cf. Oetker in Munich Commentary on the BGB, 6th edition. 2012, § 254 Rn. 126 ff.
- ↑ Grüneberg: Palandt, Bürgerliches Gesetzbuch . 71st edition. CH Beck, 2012, p. Section 276 Rn. 26 .
- ↑ Grüneberg: Palandt, Bürgerliches Gesetzbuch . 71st edition. CH Beck, 2012, p. Section 309 marginal no. 24 ff .
- ↑ Grüneberg: Palandt, Bürgerliches Gesetzbuch . 71st edition. CH Beck, 2012, p. Section 276 Rn. 26; Section 331 Rn. 1 mwN .
- ↑ Bundesfinanzhof, judgment of November 13, 2007, VIII R 36/05 , paragraphs 10-12.
- ↑ Big calculation: MAN demands record damages from ex-board members. on: zeit.de , January 20, 2011.
- ^ Siemens supervisors come to an agreement with Pierer. In: manager-magazin.de , December 2, 2009.
