Die Nacherfüllung aus Verkäufersicht

The thesis examines the question of which of the compared sales law systems is most likely to realize the (economic) interests of the seller in connection with the consumer’s claim for specific performance, which is characterized by a high level of consumer protection. In this respect, the thesis examines 7 different complexes - from the position of specific performance in the system of purchase warranty rights to the scope of specific performance owed and the objection of disproportionality. Dogmatic focal points are, for example, the problem of self-execution in the light of European Union law and the allocation of certain damage items to specific performance or to damage claims in the light of the case law of the European Court of Justice.

The role of reliable mining and construction analysis in adjudicating mining damage claims

The basis for recognising claims for mining damage to a structure should be a mining and construction analysis, carried out following a detailed visual inspection of the damage and the results of surface deformation measurements. It allows to establish a cause and effect relation between the activity of the mining company and the damage. Unfortunately, there are cases when such an analysis is omitted and the following scheme is used: "since there is damage and the object is located in a mining area, it is mining damage". The problem is illustrated by two court cases where the author acted as an expert witness. Both cases are examples of the so-called pseudo-mining damage and confirm the thesis that the mere image of damage without professional analysis of construction and mining factors may lead to wrong conclusions regarding the causes of the damage.

21. Limitation

This chapter discusses the rules on limitation. The expiry of a limitation period provides a defendant with a complete defence to a claim. Limitation is a procedural defence. It will not be taken by the court of its own motion, but must be specifically set out in the defence. Limitation runs from accrual, which is when all the necessary elements for the cause of action are in existence. Technically, time runs from the day after the accident or breach, and stops running when the claim is brought. This is when the claimant has done everything they can to issue the claim form. Time does not run if the claimant is under disability, and in cases of fraud, mistake, and concealment. In personal injury and latent damage claims time will not start running until the claimant has the requisite ‘knowledge’, and there is a discretion to disapply limitation in personal injury claims.

Leniency and Damage Liability for Cartel Members in Brazil

A recent debate on leniency policies is the interplay between the public and the private competition law enforcement. The lack of a well-established set of rules regarding damage claims may be harming the effectiveness of the Brazilian Leniency Program, either by discouraging the wrongdoers from applying for leniency in already formed cartels or by not being threatening enough to deter the cartel formation. The paper objective is to analyze the best policies for leniency applicants regarding the damage liability in Brazil. We conclude that the optimal policy is providing immunity to the leniency applicant, and after that the damage claim lawsuits can be encouraged with no undesirable effects. Extensions confirm the following: the immunity is even more effective when there is risk of betrayal; the immunity is the best policy in the case of ex-post leniency; the immunity is the optimal policy when there is no bankruptcy, otherwise the applicant liability should be the minimum necessary to avoid the bankruptcy; immunity regarding criminal sanctions for individuals is the optimal policy; for international cartels, the optimal policy is a combination of immunity regarding damage claims in all jurisdictions. JEL codes: L13; L41; L44

Estimating the hazard from extreme hail events across regional to local scales

<p>Hailstorms and associated hail stone sizes are a tricky atmospheric hazard to assess, because the processes leading to severe convective weather are complex and the spatiotemporal scales of the impacts are often small. The high natural variability of hail requires expensive high-resolution, area-covering measurements to establish robust statics. Weather radars help to achieve this, but despite growing data archives, records usually do not yet extend to climatological time scales (≥30y), and reference ground observations to calibrate hail algorithms are still fragmentary. Consequentially, there remain substantial uncertainties regarding the long-term hazard of hail. Nevertheless, stakeholders require estimates of return periods for preventive regulations or as input to downstream impact models, e.g., in the insurance and engineering sector.</p><p>In the project “Hail climatology Switzerland” MeteoSwiss partnered up with three federal offices, the insurance and engineering sectors to establish a common national reference of the occurrence of hail in Switzerland. The deliverables include developing return period maps of extreme hail events. However, the definition of such extremes varies across sectors. For example, stakeholders from damage prevention require impact probabilities of the largest hailstorm onto an average rooftop, whereas reinsurance stakeholders are interested in nation-wide worst-case events. Here we report on the approaches we took in deriving the frequencies of severe hail considering the different stakeholder demands and the challenges and uncertainties we thereby encountered.</p><p>Using newly reprocessed gridded radar hail data, we assess frequencies of observed hail occurrence in Switzerland over 19 years (2002-2020). We further developed a probabilistic hazard model using stochastic resampling of hailstorms, driven by large-scale environmental boundary conditions. In order to take a storm-object perspective on extremes, we isolate more than 40’000 individual hailstorm footprints. This allows us to consider local storm properties such as the distributions of hail stone sizes by storm area and duration. In addition, we identify region-dependent extreme storm properties, which is specifically relevant in the Alpine region, where high and complex topography creates sharp climatic gradients and results from other regions are often not easily transferable.</p><p>Results show that observed storm tracks vary strongly between years, and hail footprints vary substantially by storm type. Comparing our results obtained from the longest radar-based hail record so far, we find that the spatial patterns of hail agree well with existing hazard maps derived, i.a., from damage claims. However, we also find that frequencies of local extreme hail stone sizes may have been underestimated in the past. This is further corroborated by a regionally aggregated comparative analysis of the radar record to historical records of very large hail in Switzerland over the past century.</p>

Die Verwaltungshaftung zwischen Bund und Ländern bei der Ausführung der Bundesgesetze

This thesis analyzes liability between the federal and the state in the execution of federal law in Germany. Under the German constitution the federal and the state level share the task of executing federal law. In doing so they may cause damages to each other. This may occur in the inccorrect administration of funds or taxes of the respective other federal level. Another example are third party damage claims for which the other federal level is liable vis-à-vis third parties. Suchs claim may easily reach high sums. The crucial legal basis for damage claims ist Art. 104a Sec. 5 Sentence 1 Part 2 GG. According to this provision the federal level and the state level shall be liable to one another for ensuring proper administration. This raises numerous legal problems that have not been solved yet.

THE LIABILITY OF THE STATE FOR DAMAGE CLAIMS RESULT OF VIOLATION OF THE EUROPEAN UNION LAW

The article deals with the questions connected with different court procedures on damage claims grounded in State and Municipalities Liability for Damages Act (1989) result of illegal acts of Bulgarian administrative bodies. The article designates the specific issues of the state liability including the issues connected with the new regulation of the court liability for violation of the European Union law.

Systemic Inequity in Urban Flood Exposure and Damage Compensation

Urban flooding is a growing concern in Northern Europe. While all countries in this region invest substantial resources into urban flood risk management, all property owners have unequal opportunity to have their flood risk managed. This paper presents the notion of equity in the urban flood risk management, focusing on urban flood exposure and compensation after sewage surcharge on the 31 August 2014 cloudburst over Malmö in Sweden. All damage claims and the procedures assessing them were analysed based on the type of sewer system (combined or separated) that affected the properties. The results demonstrated considerable systemic inequity in both flood exposure and damage compensation. The owners of properties connected to combined systems were four times more likely to make a damage claim, while having their damage claims approved just over half as often, compared with owners of properties connected to separated sewage systems. Considering the multifaceted nature of both inequities and their possible resolution, current praxis is not sufficient for the management of future urban drainage systems; not only concerning changing climatic conditions but also concerning social conditions.

Here to stay: regression analysis in follow-on cartel damages

Private damage claims that follow after a competition authority's infringement decision require an accurate estimation of the harm caused, in order to avoid under- or over-compensation. The right method for valuation of damage will depend on the specifics of a particular case, and will need to balance the need to allow for a sufficient level of detail, while remaining tractable and practical for the case overall. Regression analysis is often the method that best balances these competing objectives. This article discusses the increasing use of regression analysis in follow-on damage claims in Europe. It outlines possible reasons why this widespread application of regression analysis is not yet extensively reflected in final judgments by national courts, and considers how this may change in the future. It concludes that the regression analysis is here to stay.

Antitrust Damage Claims: A View From Efta Court

Articles 101 and 102 TFEU have become a pattern for competition rules provided in Articles 53 and 54 of the EEA Agreement, which entered into force on 1 January 1994. Both EU competition law and EEA competition law can be enforced before national courts. Lodging damage claims in the EU was facilitated by Directive 2014/104/EU. The so-called Antitrust Damages Directive was highly inspired by the jurisprudence of the Court of Justice of the European Union. Although Directive 2014/104/EU has not been incorporated into the EEA law, damage claims resulting from violations of EEA competition rules are judged by national courts in the EEA Member States, which is why some aspects of private enforcement of competition law have become a point of interest for the EFTA Court, being – together with the Court of Justice of the European Union – the EEA court. Firstly, the article aims at checking if the EFTA Court jurisprudence on antitrust damage claims follows the guidelines formulated in the case law of the Court of Justice. Since the positive answer to this question is highly probable, secondly, the article aims at identifying the extent of the impact of EU jurisprudence in private enforcement cases on judgments of the EFTA Court. The article concludes that the EFTA Court’s activities regarding antitrust damage claims follow the route indicated by the Court of Justice of the European Union. Four identified judgments regarding – directly or indirectly – antitrust damage claims (Nye Kystlink, Fjarskipti, Schenker I and Schenker V), delivered by the EFTA Court, seem to strengthen its position as an institution that is able to guarantee a coherence between EEA and EU competition law. EFTA Court’s judgments in private enforcement cases are also a point of interest and reference for EU Advocates General and can become an inspiration for both EU and national case law.