The renaissance of the actio iniuriarum

These very rigorous provisions have, however, not stood the test of time. Thrown out by the front door, the actio iniuriarum has managed to sneak in through the back window—in the guise and under the cover of the general right of personality.^[5692] It was under the impact of the totalitarianism of the Nazi regime that the Bonn "constitution"^[5693] of 1949 entrenched the respect for human dignity and the right to personal freedom, very prominently, in its first two articles.

Soon the argument began to gain ground that these constitutional provisions were of fundamental importance not only in the field of public law; and since their spirit was to pervade every branch of the legal system, they should also be given material effect on the level of the private law. More particularly, delictual protection of the personality was deemed to be desirable and necessary. It was introduced in 1954 by the Federal Supreme Court via the "or other right" clause^[5694] contained in § 823 I BGB^[5695] and has, since then, been reaffirmed on numerous occasions. Invasions of the right of personality^[5696] are thus subject to the general rules of delictual liability; they give rise to a claim for damages, provided the requirements of wrongfulness and fault are satisfied. Negligence, as with all the other rights and interests of § 823 I BGB, suffices. Yet, a further step had to be taken by the courts. According to §§ 823 I, 847, 253 BGB, the aggrieved plaintiff is confined to a claim for the pecuniary loss that he has suffered. Typically, however, merely non- pecuniary loss flows from an invasion of the general personality right. Thus, for instance, the brewery-owner whose picture was taken at a show-jumping competition, to be subsequently used—without his permission—in an advert for a sexual stimulant, could show no loss of income. Nor did the professor of international and ecclesiastical law suffer any financial harm who, through a curious chain of circumstances, was referred to in a popular scientific article as an authority on ginseng roots and their erotic properties.

Nevertheless, the Federal Supreme Court in both cases awarded compensation (or perhaps rather satisfaction) for the plaintiffs pain and suffering (usually referred to as "solatium").^[5697] The elimination of damages for immaterial loss from the protection of personality would in the opinion of the court have meant that injury to the dignity and honour of a human being would have remained without satisfactory sanction by the civil law and such a state of affairs could no longer be considered as being in conformity with the fundamental value system established by the Basic Law. In the wake of these two decisions it has become standard practice^[5698] for the courts to award a financial compensation for non-pecuniary harm in all cases where the intrusion into the plaintiffs personality right is grave and objectively serious.^[5699] It is hard to imagine a line of decisions more

blatantly contra legem than this.^[5700] Yet it demonstrates that even a codification as monumental as the BGB is not completely detached from the ebb and flow of legal development. The radical renunciation of the delict of iniuria has remained a mere episode, for in essence the judges are today, once again, required to award "quantam pecuniam bonum aequum videbitur"^[5701] to the plaintiff to assuage his injured feelings.^[5702]

CHAPTER 32

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Source: Zimmermann R.. The Law of Obligations. Roman Foundations of the Civilian Tradition. Juta & Co, Ltd,1992. — 1241 p.. 1992

The renaissance of the actio iniuriarum

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