Chance und Schaden

The victim of professional malpractice may recover damages only if the link of causation between the breach of duty and the damages suffered is established to the actual certainty of the court. Yet, in many cases, this is not easy - Would the attorney's client have won the law suit »but for« the attorney's omission to file an appeal in time? Would the patient have survived »but for« the physician's failure to diagnose cancer at an earlier stage? In cases where the answer is not a clear »yes« or »no«, German courts follow the traditional »all-or-nothing-approach«: The client's claim for damages will succeed in full or be dismissed entirely, depending on the Court's decision to leave the burden of proof with the client or to shift it to the service provider. Against the background of a detailed evaluation of the experiences in foreign legal systems Gerald Mäsch examines the conditions for integrating a »loss of a chance approach« in German law and its scope of application.