Loss of Chance Damages in Competitions, Tenders and Trials in German Law

Abstract

The paper examines the problem of compensation for damages for the loss of chance in the future (winning a tender, competition, litigation) and the evolution of views on it in the German legal order. The difference between this concept and loss of profit is considered. It is concluded that the loss of chance can be considered as an element of a cause-and-effect relationship that limits the amount of damages subject to compensation by the probability of a favorable consequence occurring, and as a separate benefit subject to civil protection using a method similar to that used for compensation of «purely economic losses». The author puts a special focus on the rule on the ability of the court to determine the amount of damages at its own discretion in the event of uncertainty in their size, which is extremely favorable to compensation for lost chances. In addition, the effectiveness of compensation for harm proportional to the lost chance is considered from the point of view of economic analysis of law. A comparative legal study of this institution in other legal orders proves the absence of barriers to compensation for losses of this kind in all continental systems of justice, the Russian one included.