Benefit sharing
From benefit-sharing (also Vorteilsausgleichung ) is spoken in the German law on damages, if the claim for compensation is reduced by that positions that are remitted to the injured party as an advantage from a damaging event that may also be a saving. Example: A building is destroyed by a fire, but the necessary maintenance costs for the building are eliminated. In practice, benefit sharing plays a role in almost every claim for damages.
Reason for the benefit sharing in German law
In contrast to the Anglo-American region, under German law the injured party is not awarded an “exemplary or punitive damages ” with the claim for damages , but only compensates for the “disadvantage” caused by the injuring party. This is the difference between the situation that actually occurred and a fictitious asset level that would have arisen had it not been for the damaging event. The injured party should be placed as it would be without the damaging event, but no better.
Limits to benefit sharing
According to the case law of the Federal Court of Justice , the benefit sharing must not go so far that it runs counter to the idea of compensation. The injuring party should not be exonerated excessively. Furthermore, only those advantages should be considered that were adequately caused by the damaging event.
Third party voluntary services
When taking account of the benefit sharing, voluntary third-party services to the injured party are excluded. Either these are measures for which the third party - for example, in the context of management without an order or the right to enrichment - can turn to the injuring party as part of a recourse , then this recourse solution removes these cases from the problem of benefit sharing.
If the third party or third parties only want to give the injured party an advantage, then the injuring party should not be able to unduly exonerate himself. This is the case, for example, with collections for the victim or with voluntary donations from the employer.
Insurance benefits
A distinction must be made between insurers' payments to the victim.
- If the victim was insured against the damaging event (e.g. accident insurance ) for which the injured party had provided benefits , payments made by the insurer to the victim are not taken into account. Otherwise there would be the risk that the premium payments made by the victim to his insurer would turn into premium payments to the liability insurance of the injuring party.
- If, on the other hand, the injuring party - for example in the context of a passenger accident insurance - has rendered the benefits to the insurer, then the payments made by his insurer to the injured party must be taken into account.
- When reducing the claim for damages due to the omission of maintenance obligations, payments from a life insurer are not taken into account if the beneficiary would have been paid later anyway.
Personal contributions of the injured party
The injured party is required to keep the damage incurred as low as possible within the framework of Section 254 of the German Civil Code ( obligation to minimize damage ). If he provides his own services within the scope of this obligation, then these are to be taken into account in the context of the benefit sharing. On the other hand, the additional own work provided would unreasonably relieve the injuring party, which is why these are not to be taken into account in the benefit sharing.
Individual cases of benefit sharing
"Anyway costs"
- See main article: Anyway Costs
In the context of benefit sharing, the (repair) costs that the injured party would have incurred even without the damaging event must be taken into account.
Deduction "new for old"
If the injured party purchases a new item as a replacement for a damaged or destroyed item, then the injured party has the benefit of having the higher value of the new item countered, reducing the damage. The deduction often comes into effect after traffic accidents when a new vehicle is purchased instead of the destroyed old vehicle.
Construction cost overrun
According to the case law, there is regular benefit sharing in cases of so-called building cost overruns. A construction cost overrun occurs when an architect chooses a higher quality and therefore more expensive construction of the building, contrary to the contract. The additional costs to be treated as damage are offset by an added value of the building in such cases, which must be taken into account as an advantage.
Web links
Footnotes
- ↑ BGH, judgment of May 21, 2015, Az.VII ZR 190/14 = NJW-RR 2015, 1048 = BauR 2015, 1515 = NZBau 2015, 477 mw
