1. The Rights and Interests Protected

(c?) Introduction

The draftsmen of the BGB had the choice between several regimes of delictual liability existing side by side during the nineteenth century.^[165]’ On the one hand, there was French law with its famous generalized approach based on the teaching of the Natural lawyers (art.

The drafting of §§ 823 ff. BGB was a complex process.^{[168] [169]} Essentially, however, it was the First Commission that established the system of three core provisions as we find it today in §§ 823 I, 823 II, and 826 BGB^2/ and as it had been prefigured in pandectist textbooks like the one by Wind- scheid.^[170] Only in the course of the deliberations of the Second Commission was there a sustained argument in favour of a general provision along the lines of the Natural law codifications; it was eventually rejected by a narrow margin of 10:8 votes.

§ 823 I BGB,^[171] which may be regarded as the modern equivalent of the lex Aquilia, lists a certain number of specific rights and interests the infringement of which gives rise to delictual liability.

If § 823 1 BGB thus forms part of the tradition of Aquilian liability, as it had developed over the centuries and been applied by the Imperial Gouri until 1900, it would come as a surprise if 1 January 1900 constituted a turning point in the history of the German law of delict. There was in fact no such turning point. What we find, however, even in the early years of the BGB, is a noticeable tendency by the Imperial Court to extend the range of protection.

The central question after 1900 was how to interpret the notion of the 'other right of another'. The following issues may be distinguished.

(b) The Patrimony /Is Such

From very early on the Imperial Court made clear that the patrimony as such could not be regarded as another right in terms of § 823 I BGB.

RGZ 51, 92, judgment of 15 March 1902 (I. Division): The plaintiff had successfully rescinded a contract, concluded with the defendant, on account of a mistake which the defendant had grossly negligently induced in him. Trust­ing in the validity of the contract he had incurred expenses which he now attempted to claim as damages in terms of § 823 I BGB. The Imperial Court curtly dismissed this argument. The plaintiff had merely suffered 'an injury to the patrimony in general, not a patrimonial loss resulting from the infringement of an object of legal protection.

RGZ 52, 365, judgment of 27 October 1902 (VI. Division): The plaintiff intended to grant H. a loan to be secured by way of a mortgage. He therefore demanded from H. a notarial certificate concerning all encumbrances affecting the piece of property with respect to which the mortgage was to be created. H. asked a notary, the defendant, who negligently stated the other encumbrances of better rank to be lower than they actually were. Relying on this infor­mation, the plaintiff granted the loan which H. was subsequently unable to repay. When the piece of prop­erty was sold by public auction, he did not obtain satis­faction as a result of these other encumbrances of better rank. The Imperial Court confirmed the decision by the Appeal Court which had refused to grant a claim based on § 823 I BGB against the notary.

The Court, however, managed to assist the plaintiff in a differ­ent manner. It maintained that between plaintiff and defen­dant an implied contract had been concluded to supply the information required. Thus, the notary was liable for damages for breach of contract. Here we can see the origins of a development that was to characterize the modern German law of obligations: circumventing the limitations of the law of delict by a robust expansion of contractual liability.³³

In a number of decisions the Imperial Court reiterated that the patrimony as such does not enjoy protection in terms of § 823 1 BGB.³⁴ For the Court this was an entirely

¹¹ On the remarkable expansion of contract law in negligent misstatement cases, see Werner Lorenz, ‘Das Problem der Haftung für primäre Vermogensschäden bei der Erteilung einer unrichtigen Auskunft*, in Festschrift filr Kjirl biiritz (1973), 575 ff.; Siegbert Lammei, 'Zur Auskunftshaftung', (1979) 179 Ac P 337 ff.; Hein Kotz, Delikts­recht (7lh edn., 1996), nn.

³⁴ See, e.g., RGZ 59, 49 (51), judgment of 4 Oct. 1904 (111. Division); RGZ 63, 53 (54), judgment of 12 Mar. 1906 (VI. Division); RGZ 64, 344 (345), judgment of 22 Oct. 1906 (VI. Division); RGZ 65, 292 (294), judgment of 14 Mar. 1907 (VI. Divi­sion); RGZ 76, 35 (48), judgment of 13 Feb. 1911 (VI. Division). familiar principle, for it had been repeatedly enunciated in decisions based on the ins commune prevailing prior to the enactment of the BGB.^3? These earlier decisions were no longer referred to after 1900. But in view of the fact that the Code had so obviously rejected delictual compensation for pure economic loss there was hardly any need for an impressive array of arguments and precedents.

(c) Claims Arising under the Law of Obligations

The Imperial Court also decided, soon after the enactment of the Code, that claims arising under the law of obligations could not be regarded as 'other rights of another' under § 823 I BGB. The leading decision, handed down on 29 April 1904,³⁶ referred in the first place to the wording of the rule: if the draftsmen had wanted to extend delictual protection to claims, they would expressly have said so. Any such

³⁵ RGZ 9,158 (163 if.), judgment of 10 Feb. 1883 (I. Division) is usually regarded as the leading case; it was confirmed in RGZ 22, 133 (134), judgment of 19 Dec. 1888 (I. Division) and in RGZ 22. 208 (209), judgment of 3 Dec. 1888 (VI. Division). The Court, however, was very liberal in accepting an infringement of the right of a person who had been granted a real right in the object concerned and it was conscious of going beyond what had been recognized by "the older Roman law'; ci. RGZ 22, 208 (209 f.), RGZ 47, 249 (250), judgment of 29 Nov. 1900 (VI. Division). The question was left open in two decisions of the III.

⁷⁶ RGZ 57, 353 (VI. Division).

extension would also not be in tune with the nature of a debtor-creditor relationship (Schuldverhaltnis). The obliga­tion created a tie merely between debtor and creditor and the creditor's claim was therefore of a relative nature: it was directed not against the world at large but merely against a specific debtor. Third parties could safely ignore it. Finally, the Court also referred to a remark in the travaux pr^para- toires supporting its view.³⁷

Once again, the principle that a mere right to claim does not enjoy delictual protection had also been recognized in the case law prior to 1900.³⁸ Thus, in its decision of 1883 the Imperial Court had refused to grant delictual protection to a person who merely had a contractual claim to the object that had been damaged.³⁹

(rf) Possession

One exception to this principle soon came to be recognized, however.

RGZ 59, 326, judgment of 28 December 1904 (V. Division): The defendant ran a restaurant in a house that he had rented. In the house next door the plaintiff operated a wholesale business in petroleum. The defendant alleged that petroleum had soaked through the partition wall and had created a fire-risk. As a result, he was indeed prevented by police order from continuing to operate the restaurant. Out of court, the defendant had claimed damages from the plaintiff and the plaintiff now asked for a declaratory judg­ment that he did not have to pay any such damages.

The Imperial Court accepted that 'the right of the lessee which had been put into effect by the granting of direct possession' was 'another right of another' in terms of § 823 I BGB. With the transfer of possession the lessee's right had 'outgrown' the law of obligations. There were no longer

'Motive', in Mugdan (n. 27) 406.

The position had been different under the wsms modernus; among authors on Prussian law the question was controversial. See Benohr (n. 26) 510.

¹⁹ RGZ 9, 158 (already referred to supra n. 35). only relative rights and duties between lessor and lessee. Everybody had to respect the lessee's right that had become clearly discernible on account of the transfer of possession; this right could therefore now be counted among the absolute rights. Ultimately, however, the decision of the Imperial Court went against the lessee since it turned out that the petroleum had seeped through the wall already prior to the conclusion of the contract of lease. Thus, there had been no infringement of the lessee's right.

Interestingly, in this case the Imperial Court did not refer to the frawwx prdparatoires. This may have been due to the fact that they contradicted the Court's view. In the course of the deliberations of the Second Commission, a proposal to grant delictual protection to the right of possession by extending the list of absolute rights in § 823 I BGB had been specifically rejected. Protection in terms of §§ 858, 823 II BGB was regarded as sufficient.^[175]

The Imperial Court subsequently confirmed its posi­tion^[176] which, in this case, cannot be traced back to an older line of cases. Thus, for instance, in a decision of 1883^[177] the Court had emphasized that D. 9, 2, 27, 14 (a lessee was granted the Aquilian action on account of damage done to crops growing on the leased land) had to be regarded as an 'exceptional case' that could not be generalized. But this view had not been uncontested in nineteenth-century scholarship.^[178] If delictual protection was now granted this can hardly be regarded as an abrupt innovation.

(e) The Right to an Established and Operating Business

Another extension of delictual protection also already occurred during the early years of the BGB: recognition of the right to an established and operating business (Recht am eingerichteten mid ausgeiibten Gewerbebetrieb). It was first accepted as constituting 'another' right in a decision of 6 March 1902,^[179] but the decision that was to become funda­mentally important for the subsequent development dates from 1904.

RGZ 58,24, judgment of 27 February 1904 (I. Division):^[180] On the basis of a design that had been wrongly registered in the official register of designs the defendant had obtained an injunction restraining the plaintiff from producing carpets made of jute pile. Since the plaintiff had, indeed, for some time suspended his production, he now claimed compensation for the loss incurred.

The Appeal Court had refused to apply § 8231 BGB and had consequently turned to § 826. Here it would have been required that the defendant had known the design to have been wrongly registered. The Imperial Court, in turn, applied § 823 I BGB and thus established a liability for negligence. Admittedly, of course, there had been no damage to property: the injunction, after all, did not inter­fere with the right of ownership in the production facilities. But the plaintiff could rely on his right to an established and operating business. Of decisive importance, for the Imper­ial Court, was the fact that protection was not merely sought for the exercise of a businessman's free will: his will had already found an 'embodiment' in the production facil­ities and other objects established in his plant. There was thus a 'firm foundation' for the acceptance of a subjective right in this business. This right had been unlawfully infringed by the defendant since the design asserted by him had not in fact existed.

The scope of the right to an established and operating business, however, was narrowly confined. Thus, it was held in 1907 that misleading descriptions of a product do not constitute an infringement of a rival company's right.⁴⁶ The rival company was affected only in an 'expectation of profit' which did not enjoy protection.⁴⁷ In 1910 the Imper­ial Court⁴⁸ coined the influential formula that there had to be a 'direct' interference with the business, an interference 'aimed against the existence of that business as such'. This was not the case, for instance, if a businessman tried to side­step the rules on granting rebates adopted by an association of businessmen.

As a result of this restrictive formula we find the Imper­ial Court in a number of cases accepting the right to an established and operating business in principle but often refusing to grant protection.⁴⁹ Protection was granted mainly in situations where one competitor caused damage to another by asserting a patent or similar right without being entitled to it.⁵⁰ A boycott, strike, or lockout was not usually brought under § 823 1 BGB though this was not for lack of a direct interference but because the boycott, strike, or lockout was, as a rule, held not to have been unlawful.⁵¹ An infringement of the right to an established and operat­ing business was accepted, however, in a case involving a specifically severe form of boycott: a restaurant had for many weeks been besieged and potential guests had been violently prevented from entering it.

It was only later, from the 1930s onwards, that the

¹⁶ RGZ 65, 210, judgment of 22 Feb. 1907 (II. Division).

¹⁷ See also RGZ 73, 253 (256 f.), judgment of 8 Apr. 1910 (II. Division); RGZ 77, 217 (218 f.), judgment of 28 Sept. 1911 (VI. Division).

⁴⁸ RGZ 73,107 (112), judgment of 3 Feb. 1910 (VI. Division).

⁴⁰ Cf. also von Caemmerer (n. 22) 494.

⁵⁰ Apart from the leading case RGZ 58, 24. see RG 1905 J1V43O, no. 9, judgment of 27 May 1905 (I. Division); RG 1915 JW 327, no. 4, judgment of 26 Jan. 1915 (II. Division); RG 1917/VV712, no. 9, judgment of 2 Jan. 1917. For further references concerning the later case law, see von Caemmerer (n. 22) 494 n. 146.

⁵¹ See, e.g., RGZ 64, 52, judgment of 12 July 1906 (VI. Division). In RGZ 64,155. judgment of 4 Oct. 1906 (VI. Division) (boycott of a doctor) the requirement of an established and operating business was seen not to be satisfied.

Imperial Court gradually abandoned the requirement of an interference aimed against the existence of the business as such.⁵² Whether this has brought about a decisive transfor­mation of the system of the German law of delict, the intro­duction of a generalized form of delictual liability,⁵³ is open to doubt: the criterion of a 'direct' interference was retained and the Federal Supreme Court came to emphasize the 'subsidiarity' of the right to an established and operating business. For the period at present under consideration, at any rate, the recognition of that right constitutes a cautious extension of § 823 I BGB, relevant only for a very limited range of cases.

Moreover, we are not dealing here with a completely new development of the year 1902. Even prior to 1900 the Imper­ial Court had granted a claim for damages in cases of an interference with a business. The leading case RGZ 58,24 (29) indeed referred to the relevant judgments handed down before the enactment of the BGB, particularly to RGZ 28, 238 (2À7-24×)™ This decision, however, had been based on the provisions of the Prussian and Saxonian codes (§816 ALR; § 116 Saxonian BGB); strictly speaking, therefore, they had little precedential value for the interpretation of the BGB which did not have a similarly general provision of delictual liability.⁵⁵ Other decisions had in fact, if not in name, granted protection to an established and operating business.⁵⁶

(/) Protection of the Personality^5,

The draftsmen of the BGB had refused, in spite of protests among legal writers, to extend § 823 I BGB to the protection

⁴² See Schäfer, in Slaudhiger (n. 31) § 823 n. 152.

⁴ This is the view of von Caemmerer (n. 22) 492.

^M Judgment of 25 June 1890 (I. Division) (damages resulting from the boycott of a bookseller).

” RGZ 56, 271 (273 f.), judgment of 14 Dec. 1902 (VI. Division), dealing with the same type of case, expressly acknowledged that.

⁴ RGZ 22, 208 and RGZ 47, 249, both mentioned supra n. 35.

The term 'personality' is chosen here, in line with the standard comparative literature, for lack of a better English term; see Konrad Zweigert and l lein Kotz, An I/ifmdticliivi Io Comparative Law, tr. Tony Weir (3rd edn., 1998), 685 ff. ('right of personality); Markesinis (n. 29) 63 if. ('right to one's personality). of a person's personality. The right of honour had first been mentioned next to 'freedom' in the First Draft but was subsequently eliminated from the list of objects of legal protection. The provisions contained in the Criminal Code^[181] and two specific rules protecting the endangering of credit and the inducement to cohabit^{[182] [183]} were regarded as sufficient. Apart from that, the right to the use of a name was protected by § 12 BGB and the right to a person's image by a special act.⁶¹¹ A general right to a person's personality appears to have been alien to the statutory conception of delictual liability.

This was, at any rate, the view of the Imperial Court which it never abandoned. The first relevant judgment dates from 1902:

RGZ 51,369, judgment of 29 May 1902 (VI. Division): The defendant had called on all the other companies in his line of business not to employ any of the employees that were on strike in his own company. Some of the employ­ees concerned demanded the retraction of this call to boycott and compensation for the economic loss which they had suffered. They relied, i.a., on § 823 I BGB argu­ing that their personal right to determine how to use their capacity for work as well as their honour had been infringed.

The Imperial Court rejected their action. The recognition, in terms of § 823 I BGB, of personality rights (like the right to determine how to use one's capacity for work) would render the limitations of this rule 'completely uncertain'. As far the right of honour is concerned, the travaux prtyaratoires left 'no doubt' that it was not to be counted among the rights and interests protected by § 823 I BGB.

This decision was confirmed in a number of similar cases^[184] and also in cases in the area of copyright law. RGZ 69, 401^[185] concerned the posthumous publication of letters by Friedrich Nietzsche, without the consent of his heir. The Court reiterated that a general right of personality was 'alien to the law prevailing today'. Relief was, however, afforded by the copyright law since the letters had to be regarded 'as an individual creation of the mind, as the emanation of the intellectual activity of an individual'.^[186] Ordinary letters which merely related personal news or discussed business matters would not have been covered by this formula; this had already expressly been stated, prior to 1900, by the Imperial Court in a case concerning the letters of Richard Wagner.^[187]

Even if the Imperial Court never recognized a general right to the protection of a person's personality, it still tried to grant protection, as far as possible, on the basis of exist­ing legal rules. The law relating to copyright has already been mentioned. In other cases the Court resorted to § 826 BGB. RGZ 57, 418^[188] provides an example: § 826 BGB was used to protect an employee against lockout and against incriminations by the employer's association. An extensive interpretation of § 826 BGB was undertaken by RGZ 72, 175.^[189] A doctor had wrongfully and grossly negligently declared the plaintiff to be of unsound mind. The plaintiff's family had, therefore, started proceedings to have the plain­tiff placed under guardianship, and the plaintiff had incurred expenses as a result of these proceedings. His lawsuit against the doctor was successful, since the Imper­ial Court decided to grant damages on the basis of § 826 BGB. If a doctor is asked to check the mental health of another person, so it was argued, he has to be aware of the grave responsibility that he thereby undertakes, and he also has to bear in mind the severe consequences for that other person resulting from his pronouncement. If that pronouncement is based on insufficient evidence, the negli­gence involved also implies an infringement of the boni mores.⁶⁷

From the 1920s onwards the Imperial Court also granted some measure of protection by interpreting extensively the provisions concerning the use of a person's name and image.⁶⁸ These decisions tied in with the cautiously exten­sive line followed by the Court in the first two decades of the century. This line, in turn, can be traced back into the nineteenth century. A general right of personality had also not been recognized.⁶⁹ But towards the end of the century the Imperial Court had started to fill this gap, at least in individual cases and by doctrinal detours/⁰