Third Party Loss197

(a) Contracts with Protective Effects vis-à-vis Third Parties

Recovery of third parly loss has already been touched upon in the course of our discussion of the law of delict.¹⁹⁸ Generally speaking, a contractual party may only claim

^{lOf course, two parties may conclude a contract for the benefit of a third party (§ 328 I BGB): the third party, under these circum­stances, has the right directly to demand performance to himself.}

The proper legal foundation for this doctrine has remained unclear for a long time; whereas the Federal Supreme Court has repeatedly maintained that it constitutes an example of supplementative interpretation,²'” it is mostly regarded, today, as a case of judicial development of the law based on § 242 BGB.^{[275] [276] [277] [278] [279] The Imperial Supreme Court usually referred to § 328 BGB.}

(b) Theory of Transferred Loss

Drittschadensliquidation (often translated as theory of trans­ferred loss^[282]) constitutes another exception to the general rule that a party may only claim the damage suffered by himself. But whereas the contract with protective effects vis-à-vis third parties is a device in terms of which the third party is granted a right to claim (his own) damages, the theory of Drittschadensliquidation allows a party to a contract, in a number of reasonably well-defined, exceptional situa­tions, to claim for damages suffered by a third party.^[283] The common denominator of these situations is that the law wants to prevent the debtor from benefiting from a shift of loss that must be regarded, as far as the debtor is concerned, as fortuitous. Cases of Drittschadensliquidation were recog­nized already in a long line of nineteenth-century cases;^[284] a number of Roman sources were even invoked in support of this idea.^[285] The courts did not provide a clear doctrinal framework; increasingly they merely referred to the previ­ous case law. The introduction of the BGB did not change this position, for we are dealing here with one of those cases where the draftsmen of the Code regarded it as inappropri­ate to provide a regulation. The problem had not as yet found a definitive doctrinal form and was, therefore, not quite ripe for codification. Even without an express provi­sion the courts could be expected to find the right result, as they had done so far.^[286] This is indeed what the Imperial Court did; it simply continued to develop the law along the lines established under the ins commune.^[287] The typical 'groups of cases' (FalIgruppen) thus established still today provide the substantive core of the doctrine.^[288]