Viktor Mataja, Das Schadensersatzrecht im Entwurf eines bürgerlichen Gesetzbuchs für das Deutsche Reich (1889)

Viktor Mataja’s journal article examines the German Civil Code draft’s law of compensation through four numbered sections: the grounds of liability, the standard of care, the enforcement and valuation of claims, and contractual liability, particularly employment. Its central objection is that the draft treats compensation too much like punishment for wrongful conduct and too little like an ordering of economic relations. Mataja distinguishes the legal question of who should bear a loss from the factual question of how large that loss is. His criticism concerns both the restrictive conditions for obtaining compensation and the draft’s inadequate recognition of unequal economic vulnerability.

The first section attacks the draft’s exclusively delictual foundation for noncontractual liability. Economic activity can injure others even when conducted lawfully, carefully, and with state authorization. Such activity need not be prohibited, but neither should its victims invariably bear the resulting losses. The draft’s concentration on intention, negligence, and unlawfulness excludes liability grounded in economic causation or in the principle that those receiving an activity’s benefits should also bear its risks. Mataja accordingly questions why foreseeable injury must additionally violate an independently established right or prohibition. The provision covering conduct contrary to good morals only partially remedies this restriction.

Rücksichtslosigkeit gegen Andere sollte überhaupt im Rechte doch wohl nur bekämpft, nicht unterstützt werden.

English translation: Surely the law should only combat disregard for others, not support it.

This demand supplies the ethical orientation of his technical criticism. The draft protects the exercise of rights even when motivated by harassment and excuses unlawful injury where the injurer reasonably believed the conduct permissible. Mataja argues that such provisions transfer the consequences of the injurer’s mistake to an entirely innocent victim. Likewise, exempting children and persons deprived of reason protects those incapable of culpability without adequately considering the equally blameless injured party. Animal keepers and building possessors escape liability absent deficient care, leaving unavoidable risks with outsiders who neither benefit from nor control their source. Preserving doctrinal consistency thus takes precedence over distributing losses defensibly.

The short second section exposes a circularity in measuring negligence by the conduct of an “ordentlicher Hausvater.” Competence in managing one’s own affairs does not establish appropriate consideration for strangers. Rather, law and custom must first determine the care owed to others; a prudent householder then adapts to that requirement. Mataja separates inattentiveness toward one’s own interests from indifference toward another’s. A standard apparently describing ordinary prudence cannot itself settle the normative boundary between permissible self-interest and actionable disregard.

The third and longest section moves from establishing claims to proving and measuring them. Mataja criticizes the scarcity of presumptions assisting victims with proof of fault and causation, while approving contractual responsibility for representatives and persons employed to perform an obligation. He also welcomes compensation for both actual loss and lost profit without punitive gradations according to culpability. Yet the draft’s treatment of future gains mistakes a threshold of probability for an adequate valuation of uncertainty.

Wenn man aber, wie es im Entwurfe geschieht, den zu erwartenden Gewinn voll in Anrechnung bringt, jedoch nur dann, wenn die Wahrscheinlichkeit für ihn spricht, und ihn sonst ganz fallen läßt, so ist dies eigentlich unrichtig.

English translation: But if, as happens in the draft, the expected profit is counted in full, though only when probability favors it, and otherwise disregarded entirely, this is actually incorrect.

Mataja proposes weighing the magnitude of a possible gain together with its probability. A small chance of a large gain may equal a large chance of a small gain; neither should automatically receive full value or none. Because damages compare an actual condition with a hypothetical condition absent the injury, uncertainty is intrinsic to their assessment, not simply a deficiency in the claimant’s evidence.

He endorses restoration in kind as the clearest remedy and argues that it should logically precede the distinction between actual loss and lost profit. Full restoration includes restored opportunities: repairing a rental house restores its former condition only if it is available when the letting season begins. He objects, however, to restricting monetary compensation for nonpecuniary injury. A dismissed worker who quickly finds another job may leave the employer owing little while receiving nothing for the anxiety and burdens of seeking employment. Conversely, Mataja praises statutory minimum-loss presumptions that reduce evidentiary obstacles, although he questions whether defendants should sometimes be allowed to prove a smaller loss and whether individualized value must always exceed market value.

Die Frage, wie hoch der Schade sei, ist keine Rechtsfrage, und das Recht kann sich ihr gegenüber nur berufen fühlen, die Hand dazu zu bieten, daß die wirklichen Verhältnisse möglichst richtig zum Ausdrucke gelangen, also dafür zu sorgen, daß die Feststellung des Schadens möglichst genau geschehe.

English translation: The question of how great the damage is is not a legal question, and the law can regard its role here only as helping the actual circumstances to be expressed as accurately as possible, thus ensuring that the damage is determined as precisely as possible.

For Mataja, concessions to particular defendants belong in explicit rules governing entitlement, not in deliberately inaccurate valuations. Limiting a negligent injurer’s liability to market value, for example, produces unpredictable concessions rather than a coherent distinction from intentional wrongdoing.

The final section applies this concern with substantive fairness to employment termination. The draft permits either party to withdraw immediately for an important reason, including changed circumstances without contractual fault. Mataja challenges both the provision’s vagueness and its formal symmetry.

Die Fälle plötzlicher Entlassung möglichst einzuschränken, scheint uns überhaupt in der vorliegenden Materie der einzig richtige Standpunkt zu sein.

English translation: Restricting cases of sudden dismissal as far as possible seems to us, in this matter, to be the only correct position.

Identical contractual powers do not provide equal protection: sudden termination may inconvenience an employer while bringing a worker acute hardship. Mataja therefore seeks clearer grounds for termination and compensation where continuation becomes impossible for reasons originating with the employer. His concluding rejection remains qualified by acknowledgment of genuine improvements. The article’s significance lies in demanding that codification move beyond inherited doctrinal coherence toward economic risk allocation, accurate valuation, and protection responsive to materially unequal circumstances.