Chapter 7
COMPENSATION FOR DAMAGE
- 127. Purpose and extent of compensation for damage
(1) The purpose of compensation for damage is to place the aggrieved person in a situation as near as possible to that in which the person would have been if the circumstances which are the basis for the compensation obligation had not occurred.
(2) Damage shall not be compensated for to the extent that prevention of damage was not the purpose of the obligation or provision due to the non-performance of which the compensation obligation arose.
(3) A non-conforming party shall only compensate for such damage which the party foresaw or should have foreseen as a possible consequence of non-performance at the time of entering into the contract unless the damage is caused intentionally or due to gross negligence.
(4) A person shall compensate for damage only if the circumstances on which the liability of the person is based and the damage caused are related in such a manner that the damage is a consequence of the circumstances (causation).
(5) Any gain received by the injured party as a result of the damage caused, particularly the costs avoided by the injured party, shall be deducted from the compensation for the damage unless deduction is contrary to the purpose of the compensation.
(6) If damage is established but the exact extent of the damage cannot be established, including in the event of non-patrimonial damage or future damage, the amount of compensation shall be determined by the court. If compensation for damage is claimed due to violation of copyright or related rights or violation of industrial property right, the court may, if this is reasonable, determine compensation for the damage as a fixed amount, taking account, inter alia, the amount of fee the violator should have paid if he or she had obtained authorisation for the use of the relevant right.
[RT I 2005, 39, 308 – entry into force 01.01.2006]
(7) [Repealed – RT I 2008, 59, 330 – entry into force 01.01.2009]
- 128. Types of damage subject to compensation
(1) Damage subject to compensation may be patrimonial or non-patrimonial.
(2) Patrimonial damage includes, primarily, direct patrimonial damage and loss of profit.
(3) Direct patrimonial damage includes, primarily, the value of the lost or destroyed property or the decrease in the value of property due to deterioration even if such decrease occurs in the future, and reasonable expenses which have been incurred or will be incurred in the future due to the damage, including reasonable expenses relating to prevention or reduction of damage and receipt of compensation, including expenses relating to establishment of the damage and submission of claims relating to compensation for the damage.
(4) Loss of profit is loss of the gain which a person would have been likely to receive in the circumstances, in particular as a result of the preparations made by the person, if the circumstances on which compensation for damage is based would not have occurred. Loss of profit may also include the loss of an opportunity to receive gain.
(5) Non-patrimonial damage involves primarily the physical and emotional distress and suffering caused to the aggrieved person.
- 129. Compensation for patrimonial damage upon causing death
(1) In the case of an obligation to compensate for the damage arising from the death of a person, the obligated person shall compensate for the expenses arising from the death of the deceased person, in particular for reasonable funeral expenses, reasonable medical expenses relating to the health damage or bodily injury which caused the death of the person, and the damage arising from the aggrieved person’s interim incapacity for work.
(2) Compensation for funeral expenses shall be paid to the person who is obligated to bear the expenses. If funeral expenses are borne by another person, compensation for the expenses shall be paid to the other person.
(3) If a person whose death is caused bears, at the time of his or her death, an obligation arising from law to maintain another person, the person obligated to compensate for the damage shall pay the person reasonable monetary compensation corresponding to the maintenance payments which the deceased person would have paid to the person during the deceased person’s presumed life-span.
(4) A person obligated to compensate for damage shall also pay compensation to a third party on the basis and to the extent specified in subsection (3) of this section if the obligation to maintain such person would have arisen pursuant to law in the future and during the presumed life-span of the deceased.
(5) A person obligated to compensate for damage shall also bear the obligation provided for in subsections (3) and (4) of this section with regard to a person who, by the time of the death of the deceased person, had been conceived but not yet born.
(6) If a person whose death is caused maintained, on a continuous basis up to the death of the person, another person with whom the deceased lived together as a family or whom the deceased person maintained on the basis of a moral obligation, the person obligated to compensate for the damage shall pay compensation to the person to the extent specified in subsection (3) of this section if:
1) the person needs maintenance, and
2) the person cannot receive maintenance in any other manner, and
3) the person whose death was caused would presumably have continued to maintain the person in the future.
(7) A person obligated to compensate for damage may set up the same defences against claims for compensation for damage by persons specified in subsections (2) to (6) of this section as the person could have set up against the person whose death the obligated person caused.
- 130. Compensation for damage in case of health damage or bodily injury
(1) In the case of an obligation to compensate for damage arising from health damage or bodily injury caused to a person, the obligated person shall compensate the aggrieved person for expenses arising from such damage or injury, including expenses arising from the increased needs of the aggrieved person, and damage arising from total or partial incapacity to work, including damage arising from a decrease in income or deterioration of the future economic potential of the aggrieved person.
(2) [Repealed – RT I, 21.12.2010, 1 – entry into force 31.12.2010]
- 131. Compensation for patrimonial damage in case of deprivation of liberty or violation of personality rights
In the case of an obligation to compensate for damage caused by unlawfully depriving a person of liberty, by defamation or by violation of any other personality right, the obligated person shall compensate the aggrieved person for the expenses caused to the person and for damage arising from a decrease in income or deterioration of the future economic potential of the aggrieved person.
- 132. Compensation for damage in case of destruction, loss of or damage to thing
(1) In the case of an obligation to compensate for damage arising from destruction or loss of a thing, compensation shall be paid in an amount covering the reasonable expenses made to acquire a new thing of equal value. If by the time of the destruction or loss of a thing the value of the thing has considerably decreased in comparison to the value of an equivalent new thing, the decrease shall be taken into account in a reasonable manner when determining the amount of compensation for the damage.
(2) If acquisition of a new thing of equal value is not possible, the value of the thing which was destroyed or lost shall be compensated for.
(3) If damage is caused to a thing, compensation for the damage shall cover, in particular, the reasonable costs of repairing the thing and the potential decrease in the value of the thing. If repairing the thing is unreasonably expensive in comparison to the value of the thing, compensation shall be paid pursuant to subsection (1) of this section.
(4) If a thing damaged was necessary or useful for the aggrieved person, in particular, for the person’s economic or professional activities or work, compensation for the damage shall also cover the costs of using a thing of equal value during the time in which the damaged thing is being repaired or a new thing is being acquired. If the person does not use a thing of equal value, the person may claim compensation for loss of the advantages of use which the person could have benefited from during the time in which the thing is repaired or a new thing is being acquired.
[RT I 2003, 78, 523 – entry into force 27.12.2003]
- 133. Compensation for damage caused by environmentally hazardous activities
(1) If damage is caused by environmentally hazardous activities, damage related to deterioration in environmental quality shall also be compensated for in addition to the damage caused to persons or the property thereof. Expenses relating to preventing an increase in the damage and to applying reasonable measures for mitigating the consequences of the damage, and the damage arising from the application of such measures shall also be compensated for.
(2) Damage and expenses specified in subsection (1) of this section shall be compensated for to the extent and pursuant to the procedure provided by law.
- 134. Specifications for compensation for non-patrimonial damage
(1) Compensation for non-patrimonial damage arising from non-performance of a contractual obligation may only be claimed if the purpose of the obligation was to pursue a non-patrimonial interest and, under the circumstances relating to entry into the contract or to the non-performance, the obligor was aware or should have been aware that non-performance could cause non-patrimonial damage.
(2) In the case of an obligation to compensate for damage arising from depriving a person of liberty, causing bodily injuries to or damage to the health of a person or violation of other personality rights, including defamation of a person, the aggrieved person shall be paid a reasonable amount of money as compensation for non-patrimonial damage.
[RT I, 21.12.2010, 1 – entry into force 31.12.2010]
(3) In the case of an obligation to compensate for damage arising from the death of a person or a serious bodily injury or health damage caused to the person, the persons close to the deceased or the aggrieved person may also claim compensation for non-patrimonial damage if payment of such compensation is justified by exceptional circumstances.
(4) In the case of destruction or loss of a thing, the aggrieved person has, taking into account exceptional circumstances, the right to claim a reasonable amount of money as compensation for non-patrimonial damage in addition to compensation for patrimonial damage regardless of the usefulness of the thing if the person had a special interest in the destroyed or lost thing primarily for personal reasons.
(5) The gravity and scope of the violation and the conduct and attitude of the person who caused damage to the aggrieved person after the violation shall be taken into account for the purposes of determining the compensation for non-patrimonial damage.
[RT I, 21.12.2010, 1 – entry into force 31.12.2010]
(6) In addition to the provisions of subsections (5), the court may, upon determining the compensation for non-patrimonial damage for defamation of a person, inter alia by passing undue value judgement or by disclosure of incorrect information, for unjustified use of the name or image of the person, or for breaching the inviolability of the private life or other similar personality rights of the person, take into consideration the need to exert influence upon the person who caused the damage to avoid causing further damage, taking into account the financial situation of the person who caused the damage.
[RT I, 21.12.2010, 1 – entry into force 31.12.2010]
- 135. Offsetting price differences
(1) If, after withdrawing from a contract, an injured party concludes a transaction within a reasonable time and in a reasonable manner with which the injured party achieves the same purpose which was to be achieved by the contract from which the party withdrew (substitute transaction), the injured party may claim for the non-conforming party to offset the difference between the contractual price and the price arising from the substitute transaction as compensation for damage.
(2) If an injured party withdraws from a contract, the party may claim for the difference between the contractual price and the current market price of the contractual obligation of the non-conforming party at the time of withdrawal from the contract to be offset as compensation for damage if there is a market price for the object of the contractual obligation at the place of performance or at any other place which appears reasonable to take as a reference, even if the injured party does not perform a substitute transaction.
(3) The provisions of subsections (1) and (2) of this section shall not preclude or restrict the right to make a claim for compensation for damage exceeding the price difference.
- 136. Manner of compensation for damage
(1) Damage shall be compensated for in a lump sum unless the nature of the damage makes it reasonable to pay the compensation in instalments.
(2) In the event that death, a bodily injury or health damage is caused, the damage shall be compensated for in money and in instalments unless the nature of the damage makes it reasonable for the compensation to be paid as a lump sum.
(3) If damage is to be compensated for in instalments, payments shall be made in advance for each three month period unless otherwise decided by a court taking into account the circumstances. If the person entitled to receive compensation dies before the end of the period for which an instalment is or should have been paid, the obligation to pay compensation for such period remains in effect.
(4) If a court orders an obligor to pay compensation in instalments, the court may alter the period and amount of the instalments on the application of either party if, after the judgment is made, circumstances become evident which are relevant to the determination of the period and amount of the instalments and the occurrence of which was not taken into account in the determination of the instalments. The court may prescribe indexation of instalments or alteration thereof in any other way already upon order of payment of instalments if this is clearly reasonable.
[RT I 2008, 59, 330 – entry into force 01.01.2009]
(5) In the cases provided by law or a contract and in other cases where this is reasonable under the circumstances, the aggrieved person may claim compensation for damage in a manner other than monetary compensation.
- 137. Compensation for damage paid by several persons
(1) If several persons are liable, on the same or different grounds, to a third party for the same damage caused to the third party, they shall be jointly and severally liable for payment of compensation.
(2) In relations between the persons specified in subsection (1) of this section, liability shall be divided taking into account all circumstances, in particular the gravity of the non-performance or the unlawful character of other conduct and the degree of risk borne by each person.
(3) If one of the persons obligated to compensate for damage has the right to set up defences which would preclude or restrict the person’s liability to the person requiring the compensation, the claim for compensation against other obligors shall be reduced to the extent of the share of the obligation which the person entitled to set up the defences bears in relations between the persons obligated to compensate for the damage.
- 138. Common liability for damage
(1) If several persons may be liable for damage caused and it has been established that any of the persons could have caused the damage, compensation for the damage may be claimed from all such persons.
(2) A person obligated to compensate for damage shall be released from liability if the person proves that the damage was not caused thereby.
(3) In the case specified in subsection (1) of this section, compensation for damage may be claimed from each person to an extent in proportion to the probability that the damage was caused by the person concerned.
- 139. Damage due in part to aggrieved person
(1) If damage is caused in part by circumstances dependent on the injured party or due to a risk borne by the injured party, the amount of compensation for the damage shall be reduced to the extent that such circumstances or risk contributed to the damage.
(2) The provisions of subsection (1) of this section also apply if the aggrieved person failed to draw the attention of the person causing the damage to an unusually high risk of damage or to prevent the risk of damage or to perform any act which would have reduced the damage caused if the aggrieved person could have reasonably been expected to do so.
(3) In the event that the death of a person or damage to the health of a person is caused, the compensation for damage may be reduced on the grounds specified in subsection (1) of this section only if the aggrieved person contributed to the damage intentionally or through gross negligence.
(4) The restriction on reducing compensation for damage provided for in subsection (3) of this section shall not be applied to the extent that the injured party is compensated for the damage by an insurer.
- 140. Limits on compensation for damage
(1) The court may reduce the amount of compensation for damage if compensation in full would be grossly unfair with regard to the obligated person or not reasonably acceptable for any other reason. In such case, all circumstances, in particular the nature of the liability, relationships between the persons and their economic situations, including insurance coverage, shall be taken into account.
(2) Limits on the extent of the liability of a person who causes damage, or a fixed amount of compensation for damage may be provided by law.