Presumption of correct behavior
The presumption of correct behavior is a term from the advice liability in German law of obligations . It helps to solve the problem of the causality of incorrect advice or failure to provide advice for the damage caused. According to this, it is assumed that the addressee of a professional explanation, i.e. the patient of a doctor or the client of a lawyer, would have behaved according to the correct professional explanation had the professional advice actually taken place (in the case of non-advice) or correctly (in the case of incorrect advice) . It is therefore presumed in favor of the injured party, that the damage occurs because of the breach of duty of the consultant has. The presumption of correct behavior is judicial law .
example
If, for example, the lawyer should have advised his client against going to court, it is assumed in the client's liability case against his lawyer in favor of the client that the client would not have conducted the process had his lawyer advised against the process. This also assumes that the litigation costs incurred as damage to the client can be attributed to the fact that his lawyer, contrary to his duty, did not advise him not to conduct the process.
Counter-evidence
However, it is in principle possible for the defendant in the liability process to dispel this presumption in favor of the plaintiff in the liability process: The defendant can demonstrate and prove that the plaintiff would not have followed the advice given by the defendant. For example, as the defendant in the liability proceedings, it is possible for the attorney to assert and prove that his client, the plaintiff in the liability proceedings, would have led the process even if he had expressly advised him not to conduct the proceedings. If this proof is successful, the liability suit must be dismissed due to the lack of causality between breach of duty and financial loss.
literature
- Martin Schwab: The assumption of correct behavior in the case of several hypothetical decision-making options, NJW 2012, 3274.
Individual evidence
- ↑ Constant case law since BGHZ 61, 118 = NJW 1973, 1688, see. BGHZ 124, 151 = NJW 1994, 512, cf. BVerfG NJW 2012, 443 mwN
