Chapter 1 Fundamental provisions

VI.–1:101 Basic rule

1. (1) A person who suffers legally relevant damage has a right to reparation from a person who caused the damage intentionally or negligently or is otherwise accountable for the causation of the damage.

2. (2) Where a person has not caused legally relevant damage intentionally or negligently that person is accountable for the causation of legally relevant damage only if Chapter 3 so provides.

VI.–1:102 Prevention Where legally relevant damage is impending, this Book confers on a person who would suffer the damage a right to prevent it. This right is against a person who would be accountable for the causation of the damage if it occurred.

VI.–1:103 Scope of application VI.–1:101 (Basic rule) and VI.–1:102 (Prevention):

1. (a) apply only in accordance with the following provisions of this Book;

2. (b) apply to both legal and natural persons, unless otherwise stated;

3. (c) do not apply in so far as their application would contradict the purpose of other private law rules; and

4. (d) do not affect remedies available on other legal grounds.

Chapter 2 Legally relevant damage

Section 1 General

VI.–2:101 Meaning of legally relevant damage

1. (1) Loss, whether economic or non-economic, or injury is legally relevant damage if:

1. (a) one of the following rules of this Chapter so provides;

2. (b) the loss or injury results from a violation of a right otherwise conferred by the law; or

3. […]

INTRODUCTION

Four basic assumptions

The Draft Bill takes as its fundament the present state of the intense legal discussion of liability law in Europe, at EU as well as at Member State level. This discussion embodies a huge amount of academic literature. The law of delict in the great codifications of the nineteenth century, the French civil code of 1804 and the German civil code of 1896/1900, merely serve as a first orientation and starting point. The civil law codifications of the nineteenth century, both inside and outside of Europe, were largely modelled on the French Code civil, but from the turn of the twentieth century onwards, the BGB assumed this model role, especially in Japan, Russia, Brazil and China. However, the law of delict in the Japanese (1898) and Chinese (1930) civil codes had also already modified the rigidness of the German law. Now, more than ever, a liability law for the twenty-first century must find its own path.

Title I Basic rules

Article 1:101 Basic norm One who in a legally attributable way injures the legally protected interests of another is bound to compensate the injured for the loss resulting therefrom.

Article 1:102 Legally protected interests of a human being

1. (1) Legally protected interests are, in particular, the life, bodily and health integrity, as well as the free movement of a human being. In respect of the compensation of fatal injuries, special rules apply (Arts. 6:201/202).

2. (2) The legally protected interests of an individual person also include intangible legal interests such as dignity, self-determination, privacy, as well as the ‘right’ to personal identity, to one's own image, name, voice and personal data.

3. (3) The protection of personality interests, according to paragraph 2, also extends to groups of individuals and to legal persons of private and public law, to the extent that they are applicable to these legal addressees.

Article 1:103 Other legally protected interests

1. (1) Legally protected interests further include property rights on movable and immovable things, as well as on intangible objects, especially ownership and intellectual property. Lawful possession of things is also protected. Animals are treated as corporeal objects for the purposes of liability law.

2. (2) Property itself is treated as a protected interest in legally recognised cases within the meaning of this Article. It is generally protected against intentional damage (Art. 2:201). Moreover, instances of property protection admitted by statute (Art. 3:207) or by case law are deemed to be legally recognised.

Text of the Act

Chapter I General provisions

Article 1 In order to protect the legitimate rights and interests of civil subjects, clarify tort liability, prevent and punish tortious conduct, and promote social harmony and stability, this Law is formulated.

Article 2 Those who infringe upon civil rights and interests shall be subject to tort liability according to this Law.

‘Civil rights and interests’ used in this Law shall include the right to life, the right to health, the right to name, the right to reputation, the right to honour, right to one's image, right of privacy, right of marital autonomy, right of guardianship, ownership, usufruct, security right, copyright, patent right, exclusive right to use a trademark, right to discovery, right of equities, right of succession, and other personal and property rights and interests.

Article 3 The victim of a tort shall be entitled to require the tortfeasor to assume tort liability.

Article 4 Where a tortfeasor shall assume administrative liability or criminal liability for the same conduct, this shall not prejudice the tort liability that the tortfeasor shall legally assume.

Where the assets of a tortfeasor are not adequate for payments for the tort liability and administrative liabilit\y or criminal liability for the same conduct, the tortfeasor shall first assume the tort liability.

Text

(with the Additions and Amendments of February 20, August 12, 1996, October 24, 1997, July 8, December 17, 1999, April 16, May 15, November 26, 2001, March 21, November 14, 26, 2002, January 10, March 26, November 11, December 23, 2003)

Part I: Chapter 8. Non-material values and their protection

Article 150. Non-material values

1. Life and health, personal dignity and personal immunity, honour and good name, business reputation, immunity of private life, personal and family confidentiality, the right to free movement, to the choice of the place of abode and residence, the right to the name, copyright and other personal non-property rights and non-material values possessed by a citizen since his birth or by force of the law shall be inalienable and untransferable in any other way. In the instances and in conformity with the procedure stipulated by the law, personal non-property rights and other non-material values possessed by the deceased person may be exercised and protected by other persons, including the heirs of their legal owner.

2. Non-material values shall be protected in conformity with the present Code and with other laws in the instances and procedure provided for by them, and also in those instances and within those limits in which the use of the means of protecting civil rights (Art. 12) follow from the substance of the violated non-material right and from the nature of the consequences of this violation.

Text

General Part, Book I, Title I, Chapter II – Personality rights

Art. 11 With the exception of the cases provided for by law, personality rights cannot be transmitted or renounced and their exercise cannot be voluntarily limited.

Art. 12 Anyone may demand that a threat or injury to his personality rights cease, and may claim losses and damages, without prejudice to other sanctions provided for by law.

Sole paragraph. In cases of death, the surviving spouse, any relative in direct line, and any collateral relative to the fourth degree, are legitimate parties to apply for the measure provided for in this article.

Art. 13 Except for reasons of medical necessity, acts of disposition of one's own body are prohibited, when the disposition would result in a permanent reduction of physical integrity or would be contrary to good conduct.

Sole paragraph. The acts contemplated in this article shall be permitted for the purposes of transplant, in the form established by special legislation.

Art. 14 Gratuitous disposition of the whole or a part of one's own body for scientific or altruistic purposes, with effect after one's death, is valid.

Sole paragraph. The act of disposition may be freely revoked at any time.

Art. 15 No one may be compelled to submit to medical treatment or surgical intervention that presents a life-threatening risk.

Although notoriously sceptical of European initiatives to unify private law, the idea to create a model bill on civil liability law arose when I served as a legal consultant to the Standing Committee of the Eleventh National People's Congress in China from 2006–9. The Committee was engaged in drafting an Act on civil liability law as book viii of the new Chinese Civil Code. In the meantime, Dr Zhu Yan from Renmin University, Beijing, spent one year under my mentorship as German chancellor fellow of the Alexander von Humboldt Foundation in Germany. His research project involved modelling a Draft Bill of a Chinese law of delict: so, I was dragged into it! We organised a one-year international seminar at the law faculty of Bremen University. I drafted a continental European law-based model bill on liability law, which drew extensively on the legal experiences of Western industrial societies during the last century. Zhu Yan added the Chinese aspects. We published this Draft Bill, together with a commentary and translations of the Bill's text in other languages, in Germany (Entwurf für ein chinesisches Haftungsgesetz (Tübingen: Mohr Siebeck, 2009) and in China (中国侵权责任法––学者建议稿及其立法理由，北京大学出版社，北京 2009). In December 2009, the Standing Committee passed the Act on the Law of Delict of the People's Republic of China; and it came into force on 1 July 2010.