OGH vom 27.1.1999, 3 Ob 225/98d, JBL 1999, 470 Zur Verzinsung eines Schadensersatzanspruches beim Schuldnerverzug

Abstract

The following set of facts formed the basis of the decision of the Austrian OGH: The parties were land owners. Jn 1992 excavation work at the defendant's premises caused damage to the claimant's neighbouring house because inadequate precautions were taken. The amount of the damage (repair costs, reduction in value etc.) came to more than 1.85 million Austrian Schillings. The claimant did not allow the repairs until the day of the decision of the OGII, and also did not claim any advance on the costs from the defendant. He worked from October 1993 with a bank loan, that exceeded the amount of the damages, which attracted interest at a rate higher than the legal rate. In his claim, the claimant sought compensation for his aforementioned damage including the full amount of interest that had accumulated through the delay in payment. The lower courts awarded the claimant his aforementioned damage, but only allowed his claim for interest at the legal rate of 4%. In his application for Revision the claimant sought reimbursement of the sum constituting the difference between the legal rate of interest and the rate that he claimed to have paid. According to the OGII, a claimant's claim for interest is justified in so far as he has been able to show that he has actually suffered damage in the form of interest payments of the amount claimed during the relevant time period. The issue is one of damage resulting from delay, irrespective of whether the person responsible for payment of compensation was approached for an advance of the costs involved in repairing the damage before credit was obtained or not. This head of damages — which is not limited by § 1333 AGBG — can also be claimed when the person responsible for compensation is liable to pay for the "positive damage" caused by the slight negligence of the tortfeasor. According to § 1298 AGBG it is the defendant who has the burden of pleading and proof of the absence of fault. It is irrelevant whether the claimant has incurred the amount claimed solely in repair costs. A claim is however excluded, because of the disqualification of fictitious repair costs, if it is established that no attempt to repair the damage will (or can) be made at all. The following authors investigate the issues raised by the decision from the point of view of Austrian, German (Pahlke, Christodoulon), Belgian (Temmerman), and Greek (Christodoulou) law, as well as with reference to the Principles of European Contract Law, the CISG, the Unidroit Principles and the European Parliament and Council Regulation on the Combauing of Late Payments in Commercial Transactions of 29.6.2000.