Katharina de la Durantaye
Von Schiffen, Stürmen, Stegen und Schäden: Der Schadensersatzanspruch im Fall des aggressiven Notstands in Deutschland und den USA
Jahrgang 78 (2014) / Heft 1, S. 71-108 (38)
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Of Ships and Storms, and Damaged Docks: The Doctrine of Private Necessity in German and U.S. Law The German Civil Code (Bürgerliches Gesetzbuch – BGB) contains an explicit privilege for private necessity: The owner of a thing may not prevent others from damaging or destroying his property in order to avert actual danger if the threatened harm is unreasonably greater than the damage to the owner's property (§ 904 sentence 1 BGB). He may, however, claim compensation for any damages he incurred (§ 904 sentence 2 BGB). However, the Code does not state who is liable to the owner. If the person who damaged or destroyed the owner's property did not do so to preserve his own legal interest but the interests of someone else, it is unclear whether liability should fall on the actor or on the third person.Over the past century, courts and commentators have tried to find a principled solution to this problem. Doing so has proven difficult – the owner's claim under § 904 sentence 2 BGB is an exception in German private law. Usually, a person is liable to another only if he or she has done something wrong. In a case of private necessity, however, § 904 sentence 1 BGB allows the property to be sacrificed.In the United States, the doctrine of private necessity was first established in 1910 in Vincent v. Lake Erie. Until today, the case has been a staple of tort law classes throughout the country, and it has puzzled law professors and legal philosophers alike. Most agree that the case was rightly decided. There is, however, considerable disagreement as to why this is the case. Some but not all of the arguments resemble those brought forward in the discussion surrounding § 904 sentence 2 BGB.The article examines both the debates in Germany and in the United States, including historical arguments advanced on either side of the Atlantic. It shows that some of the theories which feature prominently in the United States could serve to enrich the discussion in Germany. This is true even though American scholars pay very little attention to the question of who should be liable to the owner. Indeed, the Restatement (Second) of Torts holds a different person liable than the Restatement (Third) of Restitution and Unjust Enrichment, a fact which so far has received little attention.