But one cannot and should not be able to recover costs expended to guard against nonspecific, non-imminent wrongs, such as general security precautions to guard against repetitions of wrongs such as were caused in the past.
-----Original Message-----
From: Mårten Schultz
Sent: Monday, March 10, 2008 10:23 AM
Subject: SV: Remedies For Conversion & Trespass to Goods
In comparative law literature these problems are well-known. (See for instance the questionnaire and responses to the questionnaire in Ulrich Magnus (ed.), Unification of Tort Law: Damages, Den Haag 2001, p 18.) For instance, in German law the cost of the guard seems recoverable, albeit only with a standardized amount. (At least as far as I understand it, see BGHZ 75, 230.) Austrian law, if I understand it correctly, deals with similar issues under negotiorum gestio and the reason for this is exactly the one just mentioned, that the but-for view of causation poses a problem for compensation in torts.
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The Study Group on a European Civil Code has this general approach to the recovery of costs for preventative measures:
Art. 1:102: Prevention
Where such 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.
And:
Article 7:302: Liability for Loss Averting Damage
A person who has reasonably incurred expenditure or suffered other loss in order to prevent an impending damage occurring, or in order to limit the extent or severity of a damage which occurs, has a right to compensation from the person who would have been accountable for the causation of the damage.
The PETL has the following rule:
Art. 2:104. Preventive expenses
Expenses incurred to prevent threatened damage amount to recoverable damage in so far as reasonably incurred.
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