Bundesgerichtshof (Sixth Civil Senate) 15 November 1983, BGHZ 89, 60, with case note.
This case is first published in the German Law Archive courtesy of:
Translated German Cases and Materials under the direction of Professors P. Schlechtriem, B. Markesinis and S. Lorenz
Translated by Mr. Tony Weir, Trinity College, Cambridge
On 6 July 1979 while the plaintiff was driving to the Baltic for a sailing holiday there was an accident in which the speedboat he was towing was seriously damaged. The necessary repairs took so long that he was unable to use it during his fortnight’s summer holiday or on subsequent weekends.
The parties are agreed that the defendant, as the tortfeasor’s liability insurer, is liable for the harm suffered by the plaintiff as a result of the accident.
The plaintiff’s claim includes damages for the loss of use of his boat by reason of the accident at the rate of DM 154 per day (as against the daily hire charge for a similar boat of DM 280) for the forty days he would have used it during his summer holidays and on subsequent weekends until the end of October.
The Landgericht granted the plaintiff DM 100 per day for forty days’ loss of use, on the basis that now boats are offered for hire as well as cars, the use of a boat has become as “commercial” as the use of a car.
When the defendant appealed and the plaintiff cross-appealed, the court below dismissed the plaintiff’s claim for damages for loss of use. The plaintiff’s further appeal was now dismissed.
I. The court below held that the plaintiff had no claim in respect of the loss of use of his motor boat while it was being repaired: the temporary loss of the chance of using the boat did not constitute or cause an economic harm capable of compensation under § 249 ff. BGB. The principles developed by the courts in relation to the temporary loss of use of a motor car damaged in a traffic accident could not be generalised. Unlike a motor car a speed-boat is not virtually indispensable for people’s general and daily needs; it merely conduces to leisure activity rather than saving time and rationalising work. It followed that the cost involved in using such a boat constituted an immaterial value not compensable in money.
II. These views are based on the jurisprudence of the Bundesgerichtshof and are unobjectionable.
If in addition to the substantial damage done to the boat the accident had, by depriving the plaintiff of its use, caused him further damage which could be qualified as economic harm he would have a claim for loss of use (arg. § 253 BGB), but no such further harm occurred.
1. In cases concerning the loss of use of a motor car the Bundesgerichtshof has developed certain tests in order to decide whether a harm is economic or not. Recognising that the concept of harm is not a purely legal one but rather an economic concept embedded in the law, the Bundesgerichtshof holds that economic harm occurs only where the victim’s loss is something which economists would recognise as a detriment; whether or not this is so depends mainly on public opinion (Verkehrsauffassung) [references].
Applying these tests, this senate has decided, in agreement with other senates, that a tortfeasor must in principle pay for the loss of use of a motor car even if the victim has not procured any substitute, the critical consideration for this senate being the general view today that the temporary loss of use of a car is to be regarded as an economic loss because the availability of a car conduces both in working and leisure hours to the saving of time and energy, advantages which can be regarded as “money’s worth” (BGHZ 45, 212, 215; 55, 146, 149; 56, 215, 216). It is true that a motor car gives pleasure to the person using it, but this is not the principal point, for in the general view it is because of the economic advantages of a motor vehicle that people buy and keep one (BGHZ 40, 345, 349; 45, 212, 215).
2. On the question whether the temporary loss of use of property other than motor cars is to be regarded as economic harm, a strict test must be applied. This is required by the legislative policy underlying § 253 BGB. The strict test has led the Bundesgerichtshof on several occasions to deny compensation for loss of use of property other than motor cars (BGHZ 63, 393 – fur coat; 76, 179 – private swimming pool; 86, 128 – caravan). The critical reason for rejecting the claim in these cases was that the loss of use would not generally be regarded as harm which is economic in nature.
3. The application of the test in this case leads to the conclusion that in being deprived of the use of a speed boat designed for leisure activities the plaintiff did not suffer an economic loss.
a) It cannot be shown that the general public views the loss of use of such a boat as constituting economic harm. Unlike a motor car, the property here was not principally designed or apt to provide the user with an economic advantage: the boat was to afford the pleasure of taking part in water sports. Temporary loss of the chance of using the boat involved a diminution of the personal pleasure of the individual, not what the law considers an economic loss. [references]
b) The appellant’s case is not advanced by his argument that since a speed-boat such as the plaintiff’s can be let out on hire, its use is “commercialised”. Now that most pleasures can be had in exchange for money the idea of “commercialisation” has largely lost its validity as a test for distinguishing material from immaterial harm (BGHZ 66, 277, 279f., 86, 128, 131). The Fifth and Eighth Senates of the Bundesgerichtshof have already indicated as much, and this senate agrees with them.
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