Conservative deficiency
By a further eating deficiency or Next eaters damage is called in the law , when a thing already with the acquisition of property is defective, the defect , however, then still continues to spread in the matter, that is, figuratively speaking in this "further eats".
Starting position
In principle, an initial defect is not a violation of property within the meaning of Section 823 (1) BGB . Because the purchaser never had intact ownership of the defect-free item that could be injured, but instead acquires the item that is already defective. The reason for this is the intended protection of Section 823 (1) BGB. The tort law protects only the so-called. Integrity interest , that is the integrity of the legal interests as they existed prior to the act of infringement. On the other hand , the interest in equivalence , i.e. the buyer's interest in providing a service that is equivalent to his consideration , is not protected . For example, anyone who buys an inoperable machine has no tort claims against the seller.
Exception if there is no "material equality"
In particular before the modernization of the law of obligations, the purchase law warranty rights were subject to the extremely short limitation period of six months. The contractual claims were therefore often statute-barred when the defect occurred. Not least because of this, the case law tried to help the purchaser of the defective item with tortious claims, which only later became statute-barred. If the original defect was limited to a delimited part of the thing and later leads to the destruction of the entire thing, the Federal Court of Justice believes that there should be a violation of property, so that the purchaser is entitled to a claim for damages under Section 823 (1) BGB. In the so-called float switch case, the Federal Court of Justice set up these principles for the first time: If the defective float switch in the acquired machine later leads to its destruction, the defect “eats” its way from a definable part to the entire thing tortious claims for damages.
The requirement that the deficiency must originally relate to a definable part is referred to as a lack of material equality. This is assumed if the defective part of a thing is functionally limited, easily replaceable or of little value compared to the total value of the thing. As arguments for this exception, on the one hand, the aspect that it makes no difference for the injured party whether the cause of the injury comes from the thing, which is free of defects except for a definable part, itself or from outside. On the other hand, only this definable defect leads to an infringement of property on the rest of the item, which was previously free of defects, and thus also violates the purchaser's interests in integrity.
In the literature, the case law has been criticized in particular because it circumvents the legal-political decision of the legislature with regard to the limitation periods . In addition, the task of tort law is to protect existing legal interests (interest in integrity), but not to ensure equivalent contractual consideration (interest in equivalence).
Now that the contractual and tortious statute of limitations have been more closely aligned, the actual reason for the case law on further feed damage has ceased to exist. The Federal Court of Justice seems to want to continue to apply the legal institution.
