1. Restoration, damages and "Dtfferenztheorie "
Before concluding this chapter, we still have to say something about what a plaintiff could claim in case of breach of contract—more particularly, about the crucial concepts of "quod interest" or, as the modern lawyer would put it, of "damages".
The loose equation of "quod interest" and "damages" must, however, not lead us to the conclusion that both are in fact the same. The focal point of the modern German law of damages is a uniform and comprehensive concept of damages,280 as embodied in the famous "Dxfferenztheorie”.2'" In terms of this "theory", the recoverable loss is defined as the difference between the plaintiffs position as in fact it is and as it would have been but for the interference of the damaging event. Since, as a rule, only material damages are recoverable, this involves a comparison of the actual value of the plaintiffs assets after the damaging event with their hypothetical value, established on the assumption that this event had not occurred. Does that mean that compensation consists in payment of a sum of money and that therefore a claim for breach of contract necessarily leads to a condemnatio pecuniaria? Not according to the BGB and some of the other codes of central Europe:282 in the first place the defendant owes (and has to be condemned in) restoration and only in the second instance a sum of money. Thus we read in § 249, 1 BGB:"A person obliged to make compensation shall restore the situation which would have existed if the circumstances rendering him liable to make compensation had not occurred. " ,K1
2K" For a comprehensive comparative analysis, see Treitel, op. cit., note 169, nn. 40 sqq.
Jl Cf. Lange. Schadensersatz, pp. 17 sqq. For England cf. e.g. Livingstone v.
The Rawyards CoalCo. (1880)5 AC 25 at 39; for South Africa: Union Government v.' Wameke 1911 AD 657 at 665.f Cf. e.g. § 1323 ABGB; § 79 I 6 PrALR.
~8" The idea that, in the first place, restoration (in kind) is owed did not originate in Roman law, but in the teachings of the Church. Of crucial importance was a passage in a letter of St. Augustine to a bishop by the name of Macedonius (cf. Deere turn Gratiani. Secunda Pars, Causa XIV, Quaestio VI, c 1.), according to which restoration is a necessary part of and prerequisite for true penitence: "non remittetur peccatum, nisi rcstituatur ablatum." St. Thomas Aquinas further developed this idea and created the dogmatical foundations of the theological doctrine of restitution ("restitutio est actus commutativae justitiae"); in Pope Boniface VIH's Liber Sextus it received final, legislative sanction ("peccatum non dimittitur, nisi rcstituatur ablatum": Regula iuris IV). Via the late Spanish scholastic writers and their followers (most notably the Jesuit Leonardos Lessius in Leuven) the doctrine influenced Grotius ("Culpam obligarc ad restitutionem damni": De jure belli ac pacts. Lib. II, Cap. XVII, I) and, through him, the subsequent natural lawyers. To them, the obligation to make restitution (where possible) appeared to be the obvious consequence of a breach of the natural duty of alterum non lacderc: why should the aggrieved party be obliged to accept a compensation in money, if something had been taken away from him or damaged that he had particularly treasured (Joachim Georg Darjcs). Courts and writers under the usus modemus and during the early 19th century remained sceptical, and the final breakthrough came only with the acceptance of the restitution doctrine by Friedrich
And § 251 I BGB adds:
"Insofar as restitution is impossible or is insufficient to compensate the creditor, the person liable shall compensate him in money."-**4
2.
More on the topic 1. Restoration, damages and "Dtfferenztheorie ":
- "Solutio propria", "in praecisa forma et specie obligationis"[3885] (to use the terminology of the European ius commune) has always been, and still is, the most important way of terminating obligations.
- 2. From "Konsumptionskonkurrenz" to "Solutionskonkurrenz"
- "Quod metus causa gestum erit, ratum non habeo"
- 1. The "iron" rule of Roman law and the notion of an implied lex commissoria
- "Animus iniuriandi" and Artemus Jones
- Essential elements of Roman "labour law"
- Causa as an extra piece of "garment"
- "De facto" contracts and implied promises
- Unenforceable obligations ("obligationes naturales")
- 2. The "natural" law of delict
- "Si paret... dare oportere"
- The limits of the notion of "corrumpere"
- "Contributory negligence" in Roman law
- On the "reality" of real contracts
- 1. The "weakness" of enrichment claims in German law
- The meaning of "occidere"
- The "community of collective hand"
- OTHER FORMS OF "SOLUTIO IMPROPRIA"