Compensation law

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The law of damages , also called law of damages or liability law, regulates when a person has a claim for damages against another. The German Civil Code (BGB) uses the term compensation for damages (with Fugen-s ), in Austria and Switzerland the term compensation for damages is used.

Once damage has occurred, the question must be asked who has to bear the damage (damage bearing). In principle, the damage affects the person in whose property or person it occurs (“casum sentit dominus”). However, if there are special reasons ("attribution reasons"), the legal system grants the injured person compensation for the damage suffered. The damage should be passed on.

Reasons for attribution

Functions of tort law

  • Compensation function : through the compensation claim, the injured party receives compensation for the damage suffered. This is the most important function of tort law.
  • Preventive function : Since the legal system is supposed to regulate behavior, the threat of an obligation to pay compensation acts as an incentive to avoid future damage through careful behavior, and the declaration of an obligation to pay compensation acts as an incentive not to repeat damage already committed.
  • Some also see fault liability as a sanction function : By declaring a liability to pay compensation, the person who caused the damage is inflicted an evil because of their culpable and unlawful behavior.
  • In the Anglo-American legal system is a penalty function realized in which the injured person a over the actual loss ( compensatory damages ) beyond fine ( punitive damages must be paid).

Germany

Provisions on contractual compensation can be found in Sections 280, 281, 325 BGB and in provisions on the individual types of contract. In addition, the law on damages in the sense of objective law in Germany is largely regulated in Sections 823 to 853 BGB .

Austria

In Austria, the basic provisions can be found in §§ 1293 ff of the General Civil Code ( ABGB ).

Special laws, such as the Railway and Motor Vehicle Liability Act (EKHG), the Product Liability Act (PHG), the Atomic Liability Act (AtomHG), the Official Liability Act (AHG), the Organ Liability Act (OrgHG) or the Employee Liability Act (DHG) expand and supplement the law on damages.

Switzerland

The central provisions of the law on damages can be found in the second section of the first title in the first section of the Code of Obligations in Art. 41–61. Art. 97 ff. OR for contractual damage compensation law (for liability between contractual partners) as well as the numerous provisions in other laws such as the SVG (Road Traffic Act, SR 741.01) and the KHG (Nuclear Energy Liability Act, SR 732.44) should also be mentioned.

literature

  • 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 .
  • Christian Rabl, Andreas Riedler: Civil Law III - Law of Obligations Special Part . 6th edition. Verlag Österreich, Vienna 2017, ISBN 978-3-7046-7799-0 .
  • Karl Oftinger, Emil W. Stark: Swiss Liability Law . 4 volumes (1987-1995). Schulthess, Zurich.