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4 November 1997, NJW 1998, 377

Bundesgerichtshof (Sixth Civil Senate) 4 November 1997, NJW 1998, 377, 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 Raymond Youngs, Southampton Institute

Facts: In this case a commune in Saxony is claiming damages in respect of the harm caused by unlawful interference with development on its land.  Shortly after the reunification of Germany the plaintiff decided, against the wishes of a number of citizens, to construct an industrial park.  It entered into a development contract with H., an architect, who entrusted the work to two named building contractors.  The plans having been approved by Ministry for Economy and Employment in Saxony and the appropriate government committee, work was due to start on the morning of 22 April 1991.  On that day, however — and, according to the plaintiff, the following day as well — demonstrators from the civic movement made it impossible for any work to be done.  The plaintiff charges the defendants with taking part in the demonstration and collaborating in a plan to disrupt the work, thereby causing damage to the contractors which they put at DM 62,909.66.  This sum the plaintiff paid to them and now, having prudently taken an assignment of the contractors’ claim, seeks to recover it from the defendants.


I. The court below was of opinion that the first, second, third and fifth defendants were liable to the plaintiff either in tort or in unjustified enrichment, regardless of whether the plaintiff had actually paid the sum in issue to the contractors: if it had paid, it could bring a condictio against the defendants under § 267(1) BGB as a third party who has paid off a debt due from the defendants; if they had not, they could sue in tort on the basis of the contractors’ claim for damages duly assigned to it.

The court held that the defendants were at fault and had unlawfully infringed an interest of the contractors which was protected under § 823 I BGB, namely their lawful possession of the construction machinery, interference with its use being a relevant infringement.  The members of the civic movement who foregathered on the morning of 24 April did so with the intention of disrupting the construction work.  The disruption continued until the afternoon of the following day and only came to an end when, pursuant to a conversation with the mayor’s office, the citizens were shown the documents authorising the works.  During those two days the demonstrators positioned themselves so close to the machines that the work could not proceed in safety: they were effectively blockaded.  This blockade was unlawful, and not protected as the exercise of fundamental rights under art. 5(1) and 8 of the Basic Law.  The defendants were liable as collaborators and assistants for the harm resulting from this infringement of the contractors’ protected interests, for they had all been present at least for part of the demonstration and had endorsed and helped in the blockade: the third defendant had acted as spokesperson for the demonstrators, the first defendant had furthered its purposes in an administrative capacity by making telephone calls to the authorities and so on, and the second defendant had posed in the shovel of a mechanical digger for a spectacular press photograph.

Further details were required of the loss of use of machinery and vehicles suffered by the contractors, but the claim for VAT on their losses could be dismissed right away.  There was no question of contributory fault on the part of the contractors or of the present plaintiff.

Some of the appellants’ criticisms of the decision below are justified: the judgment is not fully supported by findings of fact, some of which are procedurally flawed.  [1, 2. Procedural points; 3. Discussion of the claim in unjust enrichment, and the validity of the assignment.]

The court below was right to start out from the position that the two-day blockade of the machines allocated to the construction work was an unlawful infringement, by persons at fault, of one of the contractor’s protected interests; this in principle gave the contractors a claim under § 823 I BGB even under the conditions prevailing in the newly incorporated provinces so shortly after reunification.

a) We may leave aside the question where and under what circumstances conduct such as is here alleged constitutes an unlawful infringement of an established and operative business (on which see BGHZ 59, 30, 34 = NJW 1972, 1366), for in holding that the contractors’ lawful possession of the machinery was a legally protected interest which the blockade infringed the court below was not in error.

aa) It is established by case law that if an owner is prevented from using his property as intended, this may constitute an infringement of his ownership (BGHZ 55, 153, 159 = NJW 1971, 886).

bb) The same must be true of the right of lawful possession: if the thing possessed is to be used in a particular way and such use is unlawfully inhibited, this is an infringement of a legally protected interest under § 823 I .  The equipment which the contractors brought on to the proposed industrial park on the morning of 22 April 1991 was to be used for the work of construction they had undertaken.  Conduct of the kind found by the court below which resulted in a total blockade of the machines so that they could not be used for two full working days – no negligible or fleeting disturbance (NJW 1977, 2264, 2265) – can amount to a tortious infringement of the contractors’ lawful possession.  In the circumstances we need not ask if the contractors actually owned the machines, since the appellants do not deny that the machines were in the contractors’ lawful possession.

b) On the basis that it was right to charge the defendants with the two-day blockade and consequently with an infringement, objectively speaking, of the contractors’ possession under § 823 I BGB, the court below cannot be criticised, contrary to the view of the appellants, for holding that it was unlawful.

aa) The appellants are right, however, to argue that the blockade cannot count as the “violence” required by § 240(1) Criminal Code for the crime of oppressive coercion (Nötigung).  For demonstrators to place themselves in the immediate vicinity of vehicles, machinery and so on and thereby stymie the operations by bringing moral rather than physical pressure on the contractors’ personnel does not amount to the violence required by that provision (for details see BVerfGE 92, 1 = NJW 1995, 1141).  But this does not mean that such conduct cannot count as an unlawful infringement of a protected interest under the private law of tort.

dd) But even conduct which objectively infringes an interest protected by § 823 I BGB is not unlawful if it is legitimated as the exercise of a constitutionally protected right.  The relevant right here is the right of assembly under art. 8 GG, but it does not cover a blockade of the kind and extent found by the court below.  A defendant who deliberately uses direct pressure against a particular protected interest of another cannot normally invoke the constitutional right of assembly (BGHZ 59, 30, 35f. = NJW 1972, 1366), for this right, like that of freedom of expression of opinion, is designed to safeguard the right of a group to publicise their views by intelligible means when there is a conflict of opinions such as is inherent in a democratic society (BGHZ 59, 30, 36 = NJW 1972, 1366).

cc) Even if contained within constitutional limits, the exercise of the basic right under art. 8 GG may well infringe the rights of others.  If so, this must just be accepted.  This may be the case when demonstrations have results which, though inevitable, are unintended (such as interference with traffic movements or access to the streets, squares and other places where the demonstration is being held), or when the intentional interferences are inconsiderable and of very short duration, as when, in this case, demonstrators climbed on to the machines for a media photo-call.  But when, instead of exchanging views, presenting the other side of a dispute or making a protest as such, one actively puts pressure on third parties to prevent them from exercising their rights, one leaves the area protected by the freedom of assembly.  The right of assembly protects attempts to convert opponents to one’s own opinion, not measures designed to force others to submit against their will.  The latter is the case here if, as the court below held, the demonstrators positioned themselves right beside the construction machinery and thereby, as intended, prevented the execution of the work for two full days.

dd) Although these events took place in one of the newly incorporated provinces only a few months after reunification this does not, contrary to the view of the appellants, affect the decision that this conduct was unlawful.  The special conditions facing the citizens in the new provinces at this period of abrupt change on all fronts may indeed be taken into account in the balancing and weighting of the parties’ interests which is necessary in every case.  Nevertheless the appellants cannot usefully invoke the “confrontational culture” which existed in the DDR when, in order to bring about changes in the one-party regime, citizens made frequent and intensive use of the right of demonstration.  At the time of the events now in question the rule of law was already established in the new provinces, and it would be inconsistent with it to make the lawfulness of conduct depend on standards appropriate to conflict with the previous regime.  Under the Basic Law, which was fully in force there at the time, the lawfulness of the exercise of a fundamental right and the unlawfulness of an infringement of the legally protected interests of third parties cannot be affected by considerations of what would have been licit or desirable during the events which triggered change in the DDR.

c) There is no evidence that the defendants’ experiences with the previous regime in the DDR actually led them to think that their actions were lawful, but in any case this would be relevant only to the question of whether they were at fault (see BGHZ 59, 30, 39f. = NJW 1972, 1366).  The judgment below hints that the failure of the police to intervene may have led the demonstrators to think that their actions were justified, but, as the court held, only if such a mistake of law were unavoidable could failure to realise the unlawfulness of their actions in the given circumstances prevent a finding of fault (BGHZ 118, 201, 208 = NJW 1992, 2014).  If the defendants here supposed, without making any inquiries, that the conduct charged against them was lawful, they are guilty of negligence at least.

5. The appellants are right, however, to criticise the findings of the court below as to the extent and effect of the conduct of the several defendants against whom it entered judgment.  The court based its holding that the contractors had a good claim for tortious infringement of their lawful possession on the view that the assemblies which hindered the construction works lasted for the whole of 22 and 23 April and that, as was intended, the use of the machines for their proper purpose was wholly prevented during that period.  The findings underlying this conclusion are procedurally flawed.

a) We cannot on review uphold the appellants’ objection to the finding that, as the demonstrators intended, the blockade of the machines lasted for the whole of 22 April.  This finding was open to the judge of fact, though it was based on very slender evidence.  Nor, contrary to the view of the appellants, was it a fault of procedure that the judges whose decision was based on the evidence of M did not actually hear him give that evidence: that would be relevant only if it had had important aspects which did not figure in the written report.

b) By contrast the finding that the demonstrators blockaded the construction machinery for the whole of the following day is flawed.

6. The court below held that the defendants’ participation in the blockading measures rendered them liable in tort.  The appellants are right to object to this: the findings of fact do not satisfy the requirements of § 830 I (1) and II BGB as to the liability of joint tortfeasors and accessories.

a) The court below started out correctly by noting that the question whether a person who participates in conduct involving delictual liability falls within these provisions as a joint tortfeasor or accessory depends on principles developed in criminal law (BGHZ 63, 124, 126 = NJW 1975, 49; BGHZ 89, 383, 389 = NJW 1984, 1226).  The participation must therefore be with knowledge of the facts and at least some degree of intention on the part of the individual to commit the act in conjunction with others or to facilitate the act of another; objectively there must in addition be some actual participation in the execution of the act which in some way advances its commission and is material to it.  Thus a person who participates in a demonstration will be liable if he knows it is intended to create a blockade which infringes rights and causes harm (BGHZ 59, 30,42 = NJW 1972, 1366).

There is no need to distinguish between coauthors and accessories since in tort law both are treated alike under § 830 II BGB.  The assistance lent by an accessory need not be physical in nature — moral  support may be sufficient (BGHZ 63, 124, 130 = NJW 1975, 49) — but it must be established, consistently with the requirements of the criminal law relevant to § 830 I (1) and II BGB, that each individual was guilty of conduct which supported the unlawful infringement of the rights of another and was associated with knowledge of the facts and the intention to commit such an infringement.

b) In the light of these principles the third defendant is the only one for whose liability for participating in the blockade the court below has laid a proper foundation.  The third defendant acted as spokesperson for the demonstrators so the court could rightly hold that she not only had a significant influence on the actual course of the demonstration but also, subjectively, intended that the harmful conduct should take place.  To this extent the role and functions adopted by her in the demonstration may elucidate her inner intentions (BGHZ 63, 124, 128 = NJW 1975, 49); the court below could well base its judgment on the third defendant’s leading role in the way the demonstration developed.

c) However, the liability of the other defendants is not supported by the findings made thus far.

aa) This is clearest in the case of the fifth defendant.  On the wholly conclusory evidence of S, the court held that the fifth defendant participated in the demonstration on 22 April but it made no finding as to the nature, extent or duration of such participation.  But temporary presence at the place of the demonstration and unspecified participation in the assembly are not enough in themselves to imply co-authorship or accessoryship as regards the infringements of rights here in issue.  Mere “participation in an assembly” may be a permissible way of evincing in public one’s opinion on the matter in issue, and thus be constitutionally protected by art. 5(1) and 8(1) of the Basic Law (see BGHZ 89, 383, 395 = NJW 1984, 1226).  This is true not only of presence at mass demonstrations but also of participation in smaller and less unwieldy gatherings, provided that such participation does not go beyond what is permitted by the exercise of the rights mentioned, that the individual has no part in a project to invade rights, does not subjectively endorse the harmful conduct of the others and does not join the demonstration in knowledge of its intention to create a blockade (see BGHZ 63, 124, 128 = NJW 1975, 49).  At present there is no sufficient finding that the fifth defendant in fact contributed even morally to the infringement of the contractors’ rights in any legally relevant manner, much less any findings about his mental attitude.

bb) Nor has any sufficient foundation been laid for the liability of the first defendant.

The court below relied essentially on the evidence of S, who testified that “he had spoken with her in the street and that she had said she was one of the demonstrators”; it was error in law for the court to hold that this was evidence of intentional support for the blockade and of sufficient practical assistance.

The finding actually amounts to no more than that the first defendant attended the demonstration for a short time (indeed not even on the construction site but “in the street”, very close to where she lived), and it is not explained how such conduct, in so far as it might exceed what is permitted in the exercise of fundamental rights under art. 5(1) and 8(1) of the Basic Law, could be construed as intentional support for the unlawful measures of the blockade.  Nor is it enough that the first defendant spoke on the telephone to senior members of the commune and province, for the court did not inquire whether these calls were made in aid of the blockade or in an attempt to broker a “peaceful” solution.  In view of the first defendant’s constitutional rights it was wrong to conclude without more that she was guilty of tortious interference with the rights of others.

cc) Finally the facts found are insufficient to render the second defendant liable for relevant participation in the infringement of the contractors’ rights.  The court below founded particularly on R’s evidence that at 1630 hours on 22 April he saw the second defendant taking part in the demonstration.  Here again there is no legal justification for inferring from his brief presence at the demonstration in the late afternoon that he approved of, adopted and furthered the unlawful blockading.  Nor does it follow from the fact that he briefly climbed into the shovel of a digger in response to a photo-call; such conduct, as has already been stated above, may well be covered by art. 8(1) of the Basic Law and need not constitute a relevant unlawful infringement of the rights of the contractors.

7. Finally the court has not found with the clarity required of a final judgment what harm, if any, was suffered by the contractors.

III. The decision below must therefore be vacated and the matter remanded, with leave to the defendants to raise again by way of appeal their objections to the prior findings of that court.

NOTE to BGH NJW 1998, 377

a) Only in exceptional cases does German tort law provide compensation for negligently caused pure economic harm such as arose in this case when the construction equipment was immobilised.  Normally damages can be claimed in tort only if a particular right or legal interest, listed exhaustively in § 823 I BGB, has been infringed.  This rule has, however, proved to be unduly restrictive, so the German courts have evolved various ways  of granting compensation for pure economic harm.  Thus the courts “discovered” the “right to an established and operative business” — actually invoked by the plaintiff in this case (see II 4 a) — and included it as an “other right” under § 823 I BGB.  Again the courts gave a very wide interpretation to “infringement of ownership” and held that physical damage was not required: prevention of use is now sufficient, as the present case confirms.  Finally the courts further enlarged the scope of § 823 I BGB by holding that lawful possession is an “other right”: damage to a thing or loss of its use may now be compensated without having to ask whether the claimant was actually owner or “just” possessor.  This can be seen in the instant case: the court could deal with the interference with the use of the construction equipment in the possession of the contractors without having to decide whether they owned it or not.

b) The second issue in the case is how to accommodate the protection of the contractors’ interests (ownership or possession) and the exercise by the defendants of their right of assembly.  The court drew the line between demonstrations which simply seek to persuade people and influence opinion on a contested matter and those which are designed deliberately to bring pressure on others to prevent them using their rights as they wish.

c) The third relevant point in the decision concerns the liability of associates and assistants.  In general tort liability requires a causal contribution to the infringement and the damage.  In the case of group action the requisite contribution may take the form of moral support by the defendant for those whose acts directly cause the harm.  But it is often difficult for the victim to establish the causal effect of any such moral support, so § 830 I(1) and II BGB lay down that associates and assistants are fully liable as joint tortfeasors even if the victim cannot establish their actual causal contribution.  Such contribution is, however, presumed only of those whose association or assistance was voluntary and who with knowledge of the facts intended to act along with those who directly caused the harm.  This may not be at all clear in the case of mass manifestations that get out of control so that infringements occur which some of the participants never intended.  This was critical for the defendants here this, as some of them were eager to persuade others to their point of view but not ready to infringe their rights, such as those of the building contractors.

For further details in English see; B. S. Markesinis, The German Law of Obligations, vol II, The Law of Torts 3rd edition (with corrections and additions) (1998), ch. 2.

©1998 University of Oxford. Since 2002: © Translation The University of Oxford and Professor Markesinis 1998. HTML edition © 1998 Gerhard Dannemann.

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