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The Doctrine of ‘Rechtmäßiges Alternativverhalten’ – A Comparative and Economic Approach and its Implications for Proportional Liability

Rabel Journal of Comparative and International Private Law, Vol. 73, No. 2, pp. 336-371, 2009

Yale Law & Economics Research Paper No. 410

26 Pages Posted: 5 Jul 2010 Last revised: 26 Sep 2010

Kristoffel R. Grechenig

Max-Planck-Institute for Research on Collective Goods

Alexander Stremitzer

University of California, Los Angeles (UCLA) - School of Law

Date Written: April 1, 2009

Abstract

The German doctrine of “rechtmäßiges Alternativverhalten” is a defence which allows the tortfeasor to steer clear of any compensatory claim for harm that would have still occurred even if he had exercised due care. A comparative analysis reveals that this doctrine and its equivalent in Common Law, where it is often viewed as an issue of causation, are recognised across jurisdictions. Its purpose is to prevent over-compensation. From an economic perspective, over-compensation can be shown to be harmful in a negligence-based liability system if court decisions are likely to be imprecise due to difficulties in fact-finding. Hence, under this very realistic scenario, the doctrine plays an important efficiency role by improving the quality of negligence-based liability rules. However, the defence and its functional equivalents in the Common Law are not generally recognised by courts if the hypothetical course of action under due care is uncertain. This is because, under standard rules of proof, the court would often have to rule against the plaintiff if the latter could not establish up to a certain probability threshold that the defendant's deviation from due care had caused the harm. In such a case the courts often rule against the defendant, effectively ignoring the defence. This reintroduces the identified inefficiencies stemming from over-compensation. Assessing liability proportional to the probability that harm was caused by the defendant can be shown to solve this problem. Moreover, this article argues that the application of the proportional liability rule also has a strong doctrinal appeal. In fact, this very rule stems from the consistent application of the doctrine of “rechtmäßiges Alternativverhalten” and the causation requirement in situations of uncertainty.

Notes: Downloadable document is in German.

Keywords: Uncertain causation, Proportional Liability, Comparative Law

JEL Classification: K13

Suggested Citation

Grechenig, Kristoffel R. and Stremitzer, Alexander, The Doctrine of ‘Rechtmäßiges Alternativverhalten’ – A Comparative and Economic Approach and its Implications for Proportional Liability (April 1, 2009). Rabel Journal of Comparative and International Private Law, Vol. 73, No. 2, pp. 336-371, 2009 ; Yale Law & Economics Research Paper No. 410. Available at SSRN: https://ssrn.com/abstract=1635041

Kristoffel R. Grechenig

Max-Planck-Institute for Research on Collective Goods ( email )

Kurt-Schumacher-Str. 10
D-53113 Bonn, 53113
Germany
+49 228 91416-51 (Phone)
+49 228 91416-851 (Fax)

HOME PAGE: http://sites.google.com/site/kristoffelgrechenig

Alexander Stremitzer (Contact Author)

University of California, Los Angeles (UCLA) - School of Law ( email )

405 Hilgard Avenue
Box 90095-1476
Los Angeles, CA 90095-1476
United States

HOME PAGE: http://www.law.ucla.edu/faculty/all-faculty-profiles/professors/Pages/Alexander-Stremitzer.aspx

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