The Federal Court of Justice (BGH) recently ruled that a claim for monetary compensation for violation of the general right of personality is, in principle, not inheritable. In doing so, the BGH confirmed its previous case law.
The former German chancellor, Helmut Kohl, sued two journalists and a publishing house for publishing a large number of statements, allegedly made by him, in a book. He claimed that the book violated his general right of personality in a total of 116 passages. He therefore demanded not only an injunction against the publication of the passages in question, but also monetary compensation of at least €5 million from the defendants.
After the district court ordered the defendants to pay €1 million to Kohl, he died during the appeal proceedings subsequently brought by the defendants. These proceedings were continued by his widow and sole heir.
Both the higher regional court and the BGH denied the new plaintiff's claim for payment of monetary compensation, thereby deviating from the decision of the district court.
The main reason the BGH gave for its decision was that a claim for monetary compensation – which can be considered in principle in the event of a serious violation of personality rights – cannot be inherited. This claim would first and foremost have a function of satisfaction, which could not be fulfilled if the injured party had already died.
The BGH thus confirmed its previous case law. In 2017, in a case concerning several articles posted on the Internet that the plaintiff claimed infringed their personality rights,(1) it held that the heritability of a claim for damages for pain and suffering was to be rejected even if the proceedings were already pending or became legally pending during the lifetime of the injured person because the satisfaction of the injured person could be achieved only with the legally binding award of a claim. Therefore, it makes no difference whether the action is filed or served.
The BGH's recent decision in the Kohl case is consistent in this respect. Even though Helmut Kohl lived to see the first-instance decision in his favour (unlike the plaintiff in the proceedings underlying the 2017 decision), this made no difference to the heritability of the compensation claim; at least not if the dogmatic justification of such a claim is attributed decisively to a satisfaction function that can occur only with legal force.
With its most recent ruling, the BGH has once again clearly rejected the literature which demands that the decision of the injured party regarding whether to take action against infringement of their right of personality during their lifetime should also be taken into account for the heritability of such a claim for compensation.(2)
For further information on this topic please contact Thomas Hertl or Florian Eckert at Arnecke Sibeth Dabelstein by telephone (+49 403 177 9756) or email ([email protected] or email@example.com). The Arnecke Sibeth Dabelstein website can be accessed at www.asd-law.com.
(1) BGH judgment of 23 May 2017 (VI ZR 261/16).
(2) For example, Teichmann in Jauernig BGB section 253 marginal No. 13.