| A question from the reader shows what has recently been put forward by an insurer: If the claim for reimbursement of the repair costs was originally assigned by the injured party to the workshop and then returned to the injured party by reassignment before the action was brought, the subject-related concept of damage and thus the Workshop risk principle no longer applicable. |
Because the case law on workshop risk initially protects the injured party. But if he transfers the claim to the workshop, the applicability of the subject-related concept of damage would apply to the decision of the BGH of 22.6.22, VI ZR 147/21 lost. And because the claim is now “workshop risk-adjusted”, it can only flow back to the injured party after adjustment for workshop risk. Is that understandable?
Answer: Well roared lion, the bluff is good. It is based on the principle that the content of a claim is not changed by an assignment. But if it were about that, the protection provided by the subject-related concept of damage would not have been lost on the way from the injured party to the workshop.
1. It is all about the possibility of benefit sharing
The application of the subject-related concept of damage does not refer to the content of the claim for damages, but to its easier enforcement by the injured party when making use of the power to compensate. The sine qua non of the applicability of the subject-related concept of damage is the possibility of sharing benefits, because the damaging party may have to compensate more than is objectively necessary. The BGH only expects the damaging party to do this if the owner of the claim for damages enables him to hold himself harmless from the service provider, in this case the workshop. However, the workshop cannot assign the injured party’s claim for repayment against itself to the injuring party, because it is not the owner but the opponent of the claim to be assigned. However, the injured party can do this without further ado after the reassignment. This puts the scales back in balance.
2. This is also not an abuse of rights
This is also not illegal. The original assignment to the workshop does not have the aim of finally enforcing the claim against resistance. The assignment is historically based on a security concept and also on a service concept. In the event of considerable resistance from the damaging party, the plan includes restoring the starting position from the outset.
In such cases, use the text module call-up no. 49328117.