BGHZ 27, 137 VI. Civil Senate (VI ZR 65/57) = NJW 1958, 1041 = JZ 1958, 742
22 April 1958
with lively approving article by G. Boehmer
Translated by:
F.H. Lawson and B.S. Markesinis
Professor B.S. Markesinis

The plaintiff’s motor cycle collided on a main road passing through a village with a motor-car coming in the opposite direction which belonged to the defendant’s husband, since deceased, as the latter turned left to enter a side street. The plaintiff was injured. Both vehicles were damaged.

Criminal proceedings were instituted against both drivers. The defendant’s husband was convicted of causing bodily harm in a negligent manner but then died.¿ The death was not connected with the accident and occurred before the order of the court could be served upon him. The plaintiff was also sentenced by the Amtsgericht to pay DM 30 for speeding. On appeal the Bavarian Oberstes Landesgericht quashed this judgment and remitted the case to the Court of First Instance for rehearing. The plaintiff was then acquitted for lack of evidence.

He claimed from the defendant, as heir of her husband, compensation for the costs he had incurred in defending himself in the criminal proceedings.

The Landgericht declared his claim justified as to four-fifths and rejected any further claim. On appeal by the defendant, the Oberlandesgericht rejected the claim for the costs. The plaintiff lost his appeal against the decision for the following


The parties are still in dispute only over the question whether the defendant must also pay the plaintiff four-fifths of the costs which he had to pay to defend himself in the criminal proceedings. The Court of Appeal gave a negative reply on the ground that no causal connection existed between the bad driving of the defendant’s husband and the incurring of the defence costs. Whether the attacks against this decision of the Court of Appeal are justified may be left undecided since in any case the view of the Court of Appeal that this claim for compensation of the plaintiff is to be rejected must in the result be approved.

A finding of adequate causation is not decisive for the decision of the dispute. The current mode of thought which looks at the question of limiting liability only from the point of view of adequate causation is not always capable of providing a proper solution . . . In previous judgments the Bundesgerichtshof has already made clear its view that the formula of adequate causation does not suffice to solve the problem of limiting liability (cf. BGHZ 8, 325, 329; 10, 107, 108; 20, 137, 142, 143). In a search for other means, von Caemmerer has justly focused on the question whether the facts for which compensation is demanded lie within the area of the protection of the rule that has been broken. This formulation of the question is commonly applied and recognized in determining liability for breach of a protective statute (§ 823 II BGB). Here, as this Senate also declared in its judgments (BGHZ 12, 213, 217 and 19, 114, 126), following the case-law of the Reichsgericht, it is a condition of liability that the damage lies within the scope of the interests protected by the protective enactment, that is to say that the damage arises from the injury to a legal interest for the protection of which the rule was made. This limitation applies no less, if, as here, claims are raised under § 823 I BGB. Here, too, it must first be asked whether the damage in question lies within the protective purpose, in other words whether it concerns dangers which fall within the scope of the risks for which the rule was made. For this reason the sense and scope of the rule violated by the defendant must first be inquired into . . .

The plaintiff, in demanding compensation for his defence costs, in claiming that damage be made good that he suffered in his estate, that is to say economic damage. It is generally accepted that by § 823 I BGB, under which he primarily makes his claims, the estate as such is not protected. The only question therefore is whether the damage falls within another aspect of the field of dangers dealt with in § 823 I BGB, namely the integrity of the body, health, and property. Its intention is to protect against all risks that arise from an infringement of those rights. Only the consequences of that infringement are imputed to the wrongdoer and only within that scope are the interests of the injured party protected by it.

If anyone, like the plaintiff, is injured in an accident and his motor vehicle is damaged, the costs of restoring his health and repairing the vehicle are undoubtedly within the protective purpose of § 823 I BGB. That applies also to his loss of earnings, because his injury makes him unable to continue his calling, and also to the loss of the use he makes of the vehicle in his business. All of these are consequences of the accident which are connected with the personal injury and the damage to the vehicle. Although to some extent economic damage is involved, they fall within the protection of § 823 I BGB. It is quite different with the expenditure the criminal proceedings brought upon the plaintiff. So far no dangers that were protected against by the law have materialized through the accident. This had nothing to do with the personal injury and property damage suffered by him through the accident, for it arose from his being suspected of committing a criminal offence and from the decision of the prosecuting authority to institute proceedings against him. The risk of becoming involved in criminal proceedings is a general risk that affects every citizen. It is independent of the personal injury and property damage suffered in an accident, for it occurs even where an accident produces neither of them, and even when the driving complained of leads to no accident at all. The risk of having to spend money in defending oneself against a criminal charge is not one that the law intends to avert when casting the protection of § 823 I BGB over the integrity of health and property. Thus that provision disappears as a foundation for a claim to have that damage made good, irrespective of whether there is an adequate causal connection between the conduct of the wrongdoer and the damage done by him.

Moreover, the plaintiff cannot claim compensation for his defence costs under § 823 II BGB, in combination with § 13 StVO. For § 13 StVO . . . apart from protecting the orderly movement of traffic, also protects only the health and property of those engaged in it, but not their economic interests. The only damage that is still in dispute, the defence costs, touches neither the health nor the property of the plaintiff, but interests that are not protected by it . . .

None of the legal considerations that have been adduced support the plaintiff’s claim to have his defence costs made good.

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