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Der Einwand rechtmässigen Alternativverhaltens - Rechtsvergleich, Ökonomische Analyse und Implikationen für die Proportionalhaftung
Journal
Rabels Zeitschrift für Ausländisches und Internationales Privatrecht (RabelsZ)
ISSN
0033-7250
ISSN-Digital
1868-7059
Type
journal article
Date Issued
2009-01-01
Author(s)
Grechenig, Kristoffel
Abstract (De)
The German doctrine of "Rechtmässiges Alternativverhalten" is a defence which allows the tortfeasor to steer free from any compensatory claim for harm that would also have occurred if he had exercised due care. A comparative legal analysis reveals that this doctrine and its equivalent in common law, often viewed as an issue of causation, are recognized across jurisdictions. Its purpose is to prevent over-compensation. From an economic perspective, over-compensation can be shown to be harmful in a negligence based liability system, if court decisions are bound to be imprecise due to difficulties in fact-finding. Hence, under this very realistic scenario, the doctrine serves an important efficiency purpose by improving the quality of negligence based liability rules. However, the defence and its functional equivalents are not generally recognized by courts if the hypothetical course of action under due care is uncertain. This is because under standard rules of proof, the court would often have to rule against the plaintiff if the latter cannot establish up to a certain probability threshold that the defendant's deviation from due care caused the harm. In this case the courts often rule against the defendant, effectively ignoring the defence. This reintroduces the identified inefficiencies due to over-compensation. Assessing liability proportional to the probability that harm was caused by the defendant can be shown to solve this problem. Moreover, the article agues that the application of the proportional liability rule also has a strong doctrinal appeal. It follows from the consistent application of the doctrine of "Rechtmässges Alternativverhalten" and the causation requirement to situations of uncertainty.
Project(s)
Language
German
Keywords
Haftung unter Risiko und Unsicherheit
Hypothetische Kausalität
Proportionalhaftung
probabilistische Haftung
HSG Classification
contribution to scientific community
Refereed
Yes
Publisher
Mohr Siebeck
Publisher place
Tübingen
Volume
73
Number
2
Start page
336
End page
371
Pages
36
Subject(s)
Division(s)
Eprints ID
47381