Bereavement Damages under German Law - Status Quo and Objectives for Reform

22 Pages Posted: 3 Nov 2012

See all articles by Gerhard Wagner

Gerhard Wagner

Humboldt University School of Law; University of Chicago Law School

Date Written: November 2, 2012

Abstract

Under the German law of torts or delict, nonpecuniary losses incurred as a consequence of the death of a loved one are not compensable. Only if the spouse, partner or relative suffered a nervous shock serious enough to result in a medical condition that was verified by a doctor will damages for pain and suffering be awarded. The government of Bavaria has published a draft bill that suggests to change this state of the law and to introduce bereavement damages as a response to wrongful death. This paper explores how the Bavarian proposal fits in with general trends in European tort law and discusses the pros and cons of bereavement damages. The analysis is based upon the economic objectives of the law of torts, namely efficient deterrence, efficient risk bearing and efficient administration of claims. It is being argued that bereavement damages should be limited to cases of wrongful death, excluding cases of serious bodily injury or impairment of health. Furthermore, the scope of potential plaintiffs and the amounts recoverable should be fixed by statute rather than be left for the courts to decide on a case-by-case basis.

Note: Downloadable document is in German.

Keywords: Torts, Delict, Damages, Pain and Suffering, Bereavement, Wrongful Death

JEL Classification: K13

Suggested Citation

Wagner, Gerhard, Bereavement Damages under German Law - Status Quo and Objectives for Reform (November 2, 2012). Available at SSRN: https://ssrn.com/abstract=2170334 or http://dx.doi.org/10.2139/ssrn.2170334

Gerhard Wagner (Contact Author)

Humboldt University School of Law ( email )

Unter den Linden 9
Berlin, 10099
Germany

University of Chicago Law School ( email )

1111 East 60th Street
Chicago, IL 60637
United States

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