New Publication: "Grundfragen des Schadenersatzrechts"

Helmut Koziol's new work, “Grundfragen des Schadenersatzrechts”, is a challenging thesis on tort law, analysing and developing the fundamental ideas on which this field of law is based. This work has the aim of challenging familiar assertions and reassessing supposedly enshrined considerations, as well as drawing out the coherence of the subject area. Correspondingly, the applicability of the old, nowadays often suppressed, principle that he who has sustained a damage has to bear it himself (casum sentit dominus), is brought to awareness. Moreover, the controversial issue of “insurance instead of liability” is raised along with an analysis of the advantages and disadvantages of stricter demarcation and rigid norms versus more flowing and elastic regulations. In particular, the attention of the reader is focused on tort law in the overall system of protection of legally protected interests. Equally, the functions of the individual legal remedies are elaborated alongside the important borders and interactions between different fields of law which are themselves mapped out for analysis. Thus, the relationship between claims for damages and claims for unjust enrichment or rectification is brought up. Moreover, the matrix of problems surrounding punitive damages at the boundary between criminal and private law is displayed and the allocation of tasks between tort law and social security law is challenged. This comprehensive analytical framework clarifies the overarching tasks of tort law, as alongside the function of compensation, prevention and sanction, the economical functions are also increasingly debated. The analysis in this work does not stop there. Koziol also aims at using the obtained knowledge in the discussion of both abstract and concrete individual questions. Yet it is not intended to provide an overarching framework but rather to put the main focus on especially controversial questions and new approaches. Furthermore, the relation between the breach of a contractual obligation and tort law is investigated, as well as an analysis of the essential requirements of claims for damages: damage and causation.
 A comprehensive chapter is dedicated to the elements of imputation. Besides illegality and fault, other deficiencies in the defendant’s sphere are covered such as their economic capacity, insurability and the sphere of their risk. The question of imputation of the injured party, joint responsibility, is depicted from a new point of view, based on the fundamental ideas developed earlier. Finally the limitation of such imputation, the compensation for damage, the reduction of an obligation to pay damages and the statute of limitation of claims of are bought into the analysis. This work will be of interest to both scholars of tort law and the wider field of obligations dealing as it does not simply with the nature and aims of liability in tort, but also with the manner in which these aims and their realisation in concrete rules effects and interacts with the wider legal environment. When subjected to such wide ranging and rigorous analysis such questions reveal themselves to be of vital importance and interest to all actors on the legal stage whether judge, legislator, professor or student.

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1/19/2010 1:42:27 PM

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1/28/2010 11:40:08 AM
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thanks for the article. It was very ineresting for me.
2/25/2010 3:35:36 PM
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