Chapter 53
UNLAWFUL CAUSING OF DAMAGE
Division 1
General Provisions
- 1043. Compensation for unlawfully caused damage
A person (tortfeasor) who unlawfully causes damage to another person (victim) shall compensate for the damage if the tortfeasor is culpable of causing the damage or is liable for causing the damage pursuant to law.
- 1044. Claims filed on other basis
(1) The provisions of this Chapter do not preclude or restrict the right of a victim to claim compensation for damage on a legal basis other than that provided in this Chapter or the right to make other claims, unless otherwise provided by law.
(2) Compensation for damage arising from the violation of contractual obligations shall not be claimed on the bases provided in this Chapter, unless otherwise provided by law. Compensation for damage arising from the violation of contractual obligations may be claimed on the bases provided in this Chapter if the objective of the violated contractual obligation was other than to prevent the damage for which compensation is claimed.
(3) If the death, bodily injury or damage to the health of a person is caused as a result of the violation of a contractual obligation, the tortfeasor shall be liable for such damage on the basis provided in this Chapter.
- 1045. Unlawfulness of causing of damage
(1) The causing of damage is unlawful if, above all, the damage is caused by:
1) causing the death of the victim;
2) causing bodily injury to or damage to the health of the victim;
3) deprivation of the liberty of the victim;
4) violation of a personality right of the victim;
5) violation of the right of ownership or a similar right or right of possession of the victim;
6) interference with the economic or professional activities of a person;
7) behaviour which violates a duty arising from law;
8) intentional behaviour contrary to good morals.
(2) The causing of damage is not unlawful if:
1) the right to cause damage arises from law;
2) the victim consents to the damage being caused, except in the case where the grant of such consent is contrary to law or good morals;
3) the tortfeasor acted in self-defence or in necessity;
4) the tortfeasor legitimately used self-help to perform or protect the tortfeasor’s rights.
(3) The causing of damage by the violation of a duty arising from law is not unlawful if the objective of the provision which the tortfeasor violates is other than to protect the victim from such damage.
(4) The behaviour of an abettor or aider with regard to an act which causes damage is deemed to be equal to the behaviour of a tortfeasor, and they are liable for damage on the same basis as a tortfeasor.
- 1046. Unlawfulness of damaging personality rights
(1) The defamation of a person, inter alia by passing undue value judgement, by the unjustified use of the name or image of the person, or by breaching the inviolability of the private life or another personality right of the person is unlawful unless otherwise provided by law. Upon the establishment of unlawfulness, the type of violation, the reason and motive for the violation and the gravity of the violation relative to the aim pursued thereby shall be taken into consideration.
(2) The violation of a personality right is not unlawful if the violation is justified considering other legal rights protected by law and the rights of third parties or public interests. In such case, unlawfulness shall be established based on the comparative assessment of different legal rights and interests protected by law.
- 1047. Unlawfulness of disclosure of incorrect information
(1) The violation of personality rights or interference with the economic or professional activities of a person by way of disclosure of incorrect information or by the incomplete or misleading disclosure of factual information concerning the person or the activities of the person is unlawful unless the person who discloses such information proves that, upon the disclosure thereof, the person was not aware and was not required to be aware that such information was incorrect or incomplete.
(2) The disclosure of defamatory facts concerning a person or facts which may adversely affect the economic situation of a person is deemed to be unlawful unless the person who discloses such facts proves that the facts are true.
(3) Regardless of the provisions of subsections (1) and (2) of this section, the disclosure of information or facts is not deemed to be unlawful if the person who discloses the information or facts or the person to whom such facts are disclosed has legitimate interest in the disclosure and if the person who discloses the information has checked the information or facts with a thoroughness which corresponds to the gravity of the potential violation.
(4) In the case of the disclosure of incorrect information, the victim may demand that the person who disclosed such information refute the information or publish a correction at the person’s expense regardless of whether the disclosure of the information was unlawful or not.
- 1048. Unlawfulness of incorrect opinion of expert
The behaviour of an expert is deemed to be unlawful if the expert provides incorrect information or an incorrect opinion to another person in a financial matter or, regardless of receiving new knowledge concerning the matter, fails to correct the information or opinion already provided, and if the expert enjoys particular trust due to his or her professional activities and the person who was given the information or opinion could expect to rely on such trust.
- 1049. Unlawfulness of halting of economic or professional activities
It is deemed unlawful to cause a complete or partial halt in the economic or professional activities of another person for a significant period if the halt is caused by interfering in the activities by means of an unlawful threat or a prohibited boycott, demonstration or strike, or in another manner aimed specifically at halting the economic or professional activities of the person.
- 1050. Culpability as basis for liability
(1) Unless otherwise provided by law, a tortfeasor is not liable for the causing of damage if the tortfeasor proves that the tortfeasor is not culpable of causing the damage.
(2) The situation, age, education, knowledge, abilities and other personal characteristics of a person shall be taken into consideration upon assessment of the culpability of the person for the purposes of this Chapter.
(3) If several persons are liable for the compensation of damage and, pursuant to law, one or several of them are liable for compensation of unlawfully caused damage regardless of whether or not they are culpable, the wrongfulness of the behaviour and the form of the culpability of the persons liable for the compensation of damage shall be taken into consideration upon the division between them of the obligation to compensate for the damage.
- 1051. Prohibition on preclusion or restriction of liability
An agreement which precludes or restricts liability for damage caused unlawfully and intentionally is void.
- 1052. Restrictions on liability
(1) A person under 14 years of age shall not be liable for damage caused by himself or herself.
(2) A person shall not be liable for damage caused by himself or herself if he or she caused the damage in such a condition that he or she could not understand the meaning of or direct his or her actions. Temporary disorders caused by alcoholic beverages or narcotic or psychotropic substances shall be taken into consideration only in the case where the tortfeasor is in such a situation for a reason other than his or her own fault.
(3) A person who, pursuant to subsections (1) or (2) of this section, is not liable for damage shall nevertheless be liable for damage caused by himself or herself if it would be unjustified with regard to the victim to release the person from liability considering the tortfeasor’s age, state of development and mental state, the type of act, the financial situation of the persons concerned, including existing insurance or insurance which such persons could normally be presumed to have, and also other circumstances.
- 1053. Liability for damage caused by children and persons placed under curatorship
(1) The parents or curator of a person under 14 years of age shall be liable for damage unlawfully caused to another person by the person under 14 years of age regardless of the culpability of parents or curator.
(2) The parents or curator of a person of 14 to 18 years of age shall also be liable for damage unlawfully caused to another person by the person of 14 to 18 years of age regardless of the culpability of the parents or curator, unless they prove that they have done everything which could be reasonably expected in order to prevent the damage.
(3) In the cases provided for in subsections (1) and (2) of this section, a person who, by a contract, assumes the obligation to exercise supervision over a child shall be liable for damage caused by the child.
(4) In the relationship between a child and his or her parents or curator or a person specified in subsection (3) of this section, only the parents, curator or person specified in subsection (3) of this section shall be liable even if the child himself or herself is liable for the unlawful causing of damage.
(5) The curator of a person with restricted active legal capacity who has been placed under curatorship due to mental disability shall be liable for damage unlawfully caused by the person to another person, unless the curator proves that he or she has done everything which could be reasonably expected in order to prevent the ward from causing damage. In the relationship between a ward and the curator, the curator is presumed to be liable even if the ward himself or herself is liable for the causing of damage.
- 1054. Liability for violation committed by other person
(1) If one person engages another person in the person’s economic or professional activities on a regular basis, the person shall be liable for any damage unlawfully caused by the other person on the same basis as for damage caused by the person, if the causing of damage is related to the person’s economic or professional activities.
(2) If one person engages another person in the performance of the person’s duties, the person shall be liable for any damage unlawfully caused by the other person on the same basis as for damage caused by the person if the damage is caused or the occurrence thereof is made possible through the performance of such duties.
(3) If a person performs an act at the request of another person, the person at whose request the act is performed shall be liable for any damage caused in the course of the performance thereof on the same basis as for damage caused by the person if the damage is caused or the occurrence thereof is made possible through the performance of the act and if, due to the relationship between the person at whose request the act is performed and the person who causes the damage, the person at whose request the act is performed has control over the behaviour of the person who causes the damage.
- 1055. Prohibition on performance of damaging acts
(1) If unlawful damage is caused continually or a threat is made that unlawful damage will be caused, the victim or the person who is threatened has the right to demand that behaviour which causes damage be terminated or the making of threats with such behaviour be refrained from. In the case of bodily injury, damage to health, violation of inviolability of personal life or any other personality rights, it may be demanded, inter alia, that the tortfeasor be prohibited to approach other persons (restraining order), the use of housing or communication be regulated or other similar measures be applied.
(2) The right to demand that behaviour which causes damage as specified in subsection (1) of this section be terminated does not apply if it is reasonable to expect that such behaviour can be tolerated in human co-existence or due to significant public interest. In such case, the victim has the right to make a claim for compensation for unlawfully caused damage.
(3) If unlawful damage is caused by violation of copyright or related rights or violation of industrial property right, the person whose rights are violated may request that:
1) the violator and the person whose services a third party used for the purpose of violation of the right be refrained from further violation;
2) in order to eliminate the violation, reasonable measures be applied with regard to the infringing goods and the materials and implements principally used in the manufacture or creation of those goods, including destruction, recall and definitive removal thereof from the channels of commerce.
(4) The application of the measures specified in clause (3) 2) of this sector may be requested if the seriousness of the violation is proportional to the measures to be applied and the rights and interests of third parties. It may be requested that those measures be carried out at the expense of the violator unless it would be unreasonable. A person with regard to whom the application of the measures is requested may apply to a court for him or her to be obligated to pay financial compensation to the person whose rights were violated instead of the application of the measures, if the person has not acted intentionally or carelessly, the application of the measures would cause him or her unproportionally major damage and financial compensation may be considered sufficient compensation for the person who requested application of the measures
[RT I 2005, 39, 308 – entry into force 01.01.2006]