Tort Law in Greece [2nd ed.] 9789403502175, 9789403538266, 9789403538365, 9403502177

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SECOND EDITION EUGENIA DACORONIA

Derived from the renowned multi-volume International Encyclopaedia of Laws, this book provides ready access to how the legal dimension of prevention against harm and loss allocation is treated in Greece. This traditional branch of law not only tackles questions which concern every lawyer, whatever his legal expertise, but also concerns each person’s most fundamental rights on a worldwide scale.

Tort Law in Greece

Tort Law in Greece

Following a general introduction that probes the distinction between tort and crime and the relationship between tort and contract, the monograph describes how the concepts of fault and unlawfulness, and of duty of care and negligence, are dealt with in both the legislature and the courts. The book then proceeds to cover specific cases of liability, such as professional liability, liability of public bodies, abuse of rights, injury to reputation and privacy, vicarious liability, liability of parents and teachers, liability for handicapped persons, product liability, environmental liability, and liability connected with road and traffic accidents. Principles of causation, grounds of justification, limitations on recovery, assessment of damages and compensation, and the role of private insurance and social security are all closely considered.

TORT LAW IN GREECE SECOND EDITION EUGENIA DACORONIA

Its succinct yet scholarly nature, as well as the practical quality of the information it provides, make this book a valuable resource for lawyers in Greece. Academics and researchers will also welcome this very useful guide, and will appreciate its value not only as a contribution to comparative law but also as a stimulus to harmonization of the rules on tort.

EUGENIA DACORONIA

Tort Law in Greece

Tort Law in Greece Second Edition

Eugenia Dacoronia

This book was originally published as a monograph in the International Encyclopaedia of Laws/Tort Law. Founding Editor: Roger Blanpain General Editor: Frank Hendrickx Volume Editor: Britt Weyts

Published by: Kluwer Law International B.V. PO Box 316 2400 AH Alphen aan den Rijn The Netherlands E-mail: [email protected] Website: www.wolterskluwer.com/en/solutions/kluwerlawinternational Sold and distributed by: Wolters Kluwer Legal & Regulatory U.S. 920 Links Avenue Landisville, PA 17538 United States of America E-mail: [email protected]

DISCLAIMER: The material in this volume is in the nature of general comment only. It is not offered as advice on any particular matter and should not be taken as such. The editor and the contributing authors expressly disclaim all liability to any person with regard to anything done or omitted to be done, and with respect to the consequences of anything done or omitted to be done wholly or partly in reliance upon the whole or any part of the contents of this volume. No reader should act or refrain from acting on the basis of any matter contained in this volume without first obtaining professional advice regarding the particular facts and circumstances at issue. Any and all opinions expressed herein are those of the particular author and are not necessarily those of the editor or publisher of this volume.

Printed on acid-free paper ISBN 978-94-035-0217-5 e-Book: ISBN 978-94-035-3826-6 web-PDF: ISBN 978-94-035-3836-5 This title is available on www.kluwerlawonline.com © 2023 Kluwer Law International BV, The Netherlands All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise, without the prior written permission of the publisher. Permission to use this content must be obtained from the copyright owner. More information can be found at: www.wolterskluwer.com/en/solutions/legal-regulatory/permissions-reprints-and-licensing Printed in the United Kingdom.

The Author

Dr Eugenia Dacoronia is Professor of Civil Law at the National and Kapodistrian University of Athens Law Faculty, from where she graduated and received her doctorate with excellence. She has attended several courses abroad (Amsterdam, King’s College London, Tulane University). Since her admittance to the Athens Bar in 1981, she has been practising mostly in civil (contracts and real property), intellectual property, commercial and administrative matters. She has participated as an arbitrator or umpire at national and international arbitrations. She is also a European Patent Attorney. She teaches, among other subjects, General Principles of Civil Law, Real Property Law, Environmental Law, Torts in the Legal System of the USA, State Civil Liability, European Tort Law. She is the author of three books (in Greek) Sublease of Movables, The Issue of Construction of Wills under Greek Law, and Catastrophic Harms and Systems of Indemnification and she has published various articles and notes on court decisions (in Greek, English and French). She has taken part in international congresses as a national representative and has participated in the Trento/Torino Common Core project as well as in the Study Group on a European Civil Code (member of the Advisory Council for the ‘Lease of Goods’ and for ‘Non-Contractual Liability Arising Out of Damage Caused to Another’). She has served as Chairperson of the Supervisory Board of the Greek Independent Power Transmission Operator and as a member of the Central Codification Committee of the General Secretariat of the Government as well as a member of the European Group on Tort Law (EGTL). In 2018, Prof. Dr Dacoronia was appointed as a member of the Expert Group on liability and new technologies in its New Technologies Formation of the European Commission and in 2018 she was elected member of the UNIDROIT Governing Council, for the period 1 January 2019–31 December 2023. Prof. Dr Dacoronia has translated into English the basic provisions of the Greek Tort Law in Oliphant, K. & B. Steininger (eds). European Tort Law: Basic Texts. 1st edn. 2011, and 2nd edn. 2018 as well as into Greek the Principles of European Tort Law in Principles of European Tort Law Text and Commentary. . 2005, and she is the Editor-in-Chief of the Balogianni, E., D. Chatzimanoli & Ch. Stamelos. English-Greek/Greek-English Dictionary of Legal Terms. 4th edn. 2021. 3

The Author Since the First European Tort Conference held in Vienna in 2002 and organized by the European Centre of Tort and Insurance Law (ECTIL) till 2020, she was the national representative of Greece, presenting the development in Tort Law (Legislation, Jurisprudence, Literature) each year and her reports are published in the all relevant Yearbooks. The jurisprudence reported in these Yearbooks is also found in EUROTORT, the database of the ECTIL. As a member of the EGTL, Prof. Dr Dacoronia has participated as the national representative of Greece in all collective books of the Group, namely in: – Winiger, B., H. Koziol, B.A. Koch & R. Zimmermann (eds). Digest of European Tort Law. Vol. 1: ‘Essential Cases on Natural Causation’. 2007. – Koch, B.A. (ed.), Economic Loss Caused by Genetically Modified Organisms, Liability and Redress for the Adventitious Presence of GMOs in Non-GM Crops. 2008. – Koch, B.A. (ed.), Liability and Redress Mechanisms for Damage Caused by Genetically Modified Organisms. 2010. – Winiger, B., H. Koziol, B.A. Koch & R. Zimmermann (eds) Digest of European Tort Law. Vol. 2: ‘Essential Cases on Damage’. 2011. – Oliphant, K. (ed.). The Liability of Public Authorities in Comparative Respect. 2016. – Oliphant, K., B. Winiger & E. Karner (eds). Digest of European Tort Law. Vol. 3: ‘Essential Cases on Misconduct’. 2018; – Martin-Casals, M. (ed.). The Borderlines of Tort Law: Interactions with Contract Law. 2019. – Gilead, I. & B. Askeland (eds). Prescription in Tort Law. 2020. – Winiger, B., E. Karner, B. Askeland, M. Hogg & E. Bargelli (eds). Digest of European Tort Law. Vol. 4: ‘Limits of Liability’. Under Publication. In the Trento/Torino Common Core project, Prof. Dr Dacoronia has participated as the national representative of Greece in the following collective books: – Pozzo, B. (ed.). Property and Environment. 2007. – Hinterreger, M. (ed.). Environmental Liability and Ecological Damage in European Law. 2008. – van der Merwe, C. & A-L. Verbeke (eds). Time-Limited Interests in Land. 2012. – Palmer, V. (ed.). The Recovery of Non-pecuniary Loss in European Contract Law. 2016. – Infantino, M. & L. Zervogianni (eds). Causation in European Tort Law. 2017. – Colombi-Ciacchi, A., C. Mak & Z. Mansoor (eds). Immoral Contracts in Europe. 2020. Contact: 18, Valaoritou St., GR-10671 Athens Greece Tel.: (+30) 210 2010011 Fax: (+30) 210 3639601 Email: [email protected] Website: www.dacorlaw.com. 4

Table of Contents

The Author

3

List of Abbreviations

11

General Introduction

13

§1. GENERAL BACKGROUND OF THE COUNTRY I. Geography II. History III. Political System IV. Economic and Social Values

13 13 13 14 15

§2. LEGAL SYSTEMS I. Primacy of Legislation and Codification II. Position of the Judiciary III. Distinction Between Public and Private Law IV. Sources of Private Law in General and of Tort Law in Particular

17 17 18 20 20

§3. FUNCTION OF THE LAW OF TORTS (INDEMNIFICATION; PREVENTION; SANCTION?)

21

§4. RELATIONSHIP BETWEEN TORTS AND CRIMINAL LAW

22

§5. RELATIONSHIP BETWEEN CONTRACTUAL AND DELICTUAL OR TORTIOUS RESPONSIBILITY: CONCURRENCE OF THE CONTRACTUAL AND THE DELICTUAL LIABILITY (WHAT ABOUT PRECONTRACTUAL LIABILITY?) I. Precontractual Liability

23 26

§6. PROTECTED INTERESTS (ARE ALL INTERESTS EQUALLY PROTECTED; ARE SUBJECTIVE RIGHTS MORE PROTECTED THAN OTHERS?) I. Breach of an Absolute Right II. Breach of the Marital Duty of Loyalty III. Breach of a Relative Right

26 26 27 28

Part I. Liability for One’s Own Acts

29

Chapter 1. General Principles

29 5

Table of Contents §1. UNLAWFULNESS AND FAULT I. Unlawfulness II. Act Against Bonos Mores (Article 919 GCC)

30 30 32

§2. CONCEPT OF FAULT (WHICH BEHAVIOUR LEADS TO TORT LIABILITY?)

35

§3. DUTY OF CARE

37

§4. CAPACITY (INFANTS, MINORS) I. Cases of Non-imputability (Articles 915–918 GCC) A. Minors under 10 Years of Age and Persons Lacking Consciousness B. Minors Older Than 10 Years of Age and Deaf Mutes

39 40

Chapter 2. Specific Cases of Liability (Are All Tortfeasors Subject to the Same Rules?) §1. LIABILITY OF PROFESSIONALS I. In General (Is There a Higher Standard of Care?) II. Medical Practitioners III. Legal Practitioners IV. Builders and Architects and Others (Tax Advisers, Accountants, Banks, Etc.)

40 41

43 43 43 43 44 46

§2. LIABILITY OF PUBLIC AUTHORITIES (CONDITIONS; ALSO AGAINST THEIR ORGANS? IS COMPENSATION IN KIND POSSIBLE?)

46

§3. ABUSE OF RIGHTS (I.E., INJURY CAUSED IN THE EXERCISE OF LEGAL RIGHTS; ABUSE OF LEGAL PROCEDURE)

48

§4. INJURY TO REPUTATION AND PRIVACY (OF NATURAL AND JURISTIC PERSONS)

49

§5. INTERFERENCE BY A THIRD PERSON WITH CONTRACTUAL RELATIONS

50

Part II. Liability for Acts of Others

51

Chapter 1. Vicarious Liability

51

6

§1. EMPLOYEE/EMPLOYER

51

§2. INDEPENDENT CONTRACTORS

52

Table of Contents §3. LIABILITY OF LEGAL ENTITIES FOR ACTS OF THEIR ORGANS (AND FOR ACTS OF PERSONS ENTRUSTED WITH THE POWER TO ACT WITHOUT BEING AN ORGAN)

54

Chapter 2. Liability of Parents, Teachers and Instructors

56

Chapter 3. Liability for Things and Animals

58

Part III. Forms of Strict Liability

61

Chapter 1. Road and Traffic Accidents

65

Chapter 2. Product Liability

67

Chapter 3. Liability for Service

68

Chapter 4. Environmental Liability

69

Part IV. Defences and Exception Clauses

73

Chapter 1. Limitation of Action (Suspension and Interruption)

73

§1. THE SPECIAL PROVISION OF ARTICLE 937 GCC

73

§2. BEGINNING OF THE PRESCRIPTION OF THE CLAIM FOR DAMAGES DERIVING FROM AN OMISSION

76

Chapter 2. Grounds of Justification

79

§1. CONSENT

79

§2. NECESSITY

79

§3. SELF-HELP AND SELF-DEFENCE

81

§4. OTHERS

82

Chapter 3. Contributory Fault

84

Chapter 4. Exemption Clauses

87

Part V. Causation (Concept; Joint and Several Liability, Etc.)

89 7

Table of Contents §1. CONCEPT

89

§2. JOINT AND SEVERAL LIABILITY

90

§3. RECOURSE AMONG SEVERAL TORTFEASORS

96

Part VI. Remedies

99

Chapter 1. General Principles

99

Chapter 2. Kinds of Damage

100

§1. INDIVIDUAL AND COLLECTIVE DAMAGE

100

§2. DIRECT AND INDIRECT DAMAGE

100

§3. PECUNIARY AND NON-PECUNIARY LOSSES

101

§4. PURE ECONOMIC LOSS

101

§5. ACTUAL AND FUTURE DAMAGE (LOST PROFITS)

102

§6. OTHER COSTS (COSTS OF ASSESSING DAMAGE AND LIABILITY; COSTS IN OBTAINING JUDICIAL OR EXTRA JUDICIAL PAYMENT, ETC.)

104

§7. MITIGATION OF DAMAGES

104

Chapter 3. Assessment and Compensation of Damages §1. OBJECTIVE VERSUS SUBJECTIVE

106

§2. CONCRETE VERSUS ABSTRACT

106

§3. METHODS OF ASSESSING DAMAGES

106

§4. EQUITABLE LIMITATION OF DAMAGES

107

§5. METHODS OF PAYMENT I. Lump Sum II. Annuities

108 108 108

Chapter 4. Personal Injury and Death §1. PECUNIARY LOSSES I. Compensation in Case of Injury to the Body or Health of a Person 8

106

109 112 112

Table of Contents II. Compensation in Case of Death A. Compensation for Medical and Funeral Expenses B. Compensation for Loss of Maintenance or Services C. Compensation in Case of Suicide after an Injury §2. NON-PECUNIARY LOSSES I. Criteria Taken into Consideration When Determining the Amounts Awarded II. Development of Amounts Awarded A. In Case of Most Severe Injury (E.g., Tetraplegics, Severe Brain Damage) B. In Case of Wrongful Death III. Compensation for Non-pecuniary Damage and the Principle of Proportionality IV. Compensation for Moral Harm in Case of Violation of Contractual Obligations V. Persons Entitled to Compensation for Moral Harm VI. Monetary Compensation for Moral Harm or Pain and Suffering in Case of Workers’ Accident VII. Compensation for Moral Harm in Case of Wrongful Birth VIII. Additional Compensation for Disability or Disfiguration IX. Compensation of Moral Harm of Legal Entities (Articles 57, 59, 932 GCC) X. Compensation for Pain and Suffering A. Persons Entitled to Compensation for Pain and Suffering B. Pain and Suffering Awards to Fiancés and Non-married Partners C. Pain and Suffering Awards in Favour of Foetuses, Babies and Infants D. Pain and Suffering Awards for the Loss of Foetuses XI. Compensation of Pecuniary and Non-pecuniary Damage When the Spouse or a Close Relative of the Victim Commits Suicide

Chapter 5. Various Damages (Property)

113 113 116 117 118 120 122 122 123 126 129 130 132 133 137 140 141 141 144 147 148 149 153

§1. UNLAWFUL ABSTRACTION OF A THING

153

§2. EXPROPRIATION

153

Chapter 6. Interference with Collateral Benefits

156

§1. INSURANCE

156

§2. SOCIAL SECURITY

157

9

Table of Contents

Chapter 7. Other Remedies

158

§1. RESTITUTION (FOR UNJUST ENRICHMENT)

158

§2. INJUNCTIVE RELIEF

158

§3. PUNITIVE DAMAGES

158

Selected Bibliography

161

Index

169

10

List of Abbreviations

Adm. AID AP ArchN Arm Art. ChrID DCFR DEE ECTIL EDPol EEmpD EEN EErgD EfAth EGTL EllDni END EpiDikIA

Administrative Archeio Idiotikou Dikaiou (Private Law Archive) Areios Pagos (Greek Court of Cassation) Archeio Nomologias (Archive of Jurisprudence) Armenopoulos Article Chronika Idiotikou Dikaiou (Chronicles of Private Law) Draft Common Frame of Reference Dikaio Epicheiriseon kai Etaireion (Business and Company Law) European Centre of Tort and Insurance Law Epitheorissi Dikaiou Polykatoikias (Review of Condominium Law) Epitheorissi Emporikou Dikaiou (Commercial Law Review) Ephimeris Ellinon Nomikon (Journal of Greek Jurists) Epitheorissi Ergatikou Dikaiou (Review of Labour Law) Efeteio Athinon (Athens Court of Appeal) European Group on Tort Law Elliniki Dikaiosini (Greek Justice) Epitheorissi Nautiliakou Dikaiou (Review of Maritime Law) Epitheorissi Dikaiou Idiotikis Asfaliseos (Review of Private Insurance Law) EpiskEmpD Episkopissi Emporikou Dikaiou (Survey of Commercial Law) EpSygkD Epitheorissi Sygkoinoniakou Dikaiou (Transport Law Review) ErmAK Ermineia Astikou Kodika (Interpretation of the Greek Civil Code) EU European Union GCC Greek Civil Code GCCP Greek Code of Civil Procedure GDP Gross Domestic Product GPC Greek Penal Code GRD Greek Drachma IKA Idryma Koinonikon Asfaliseon (Social Security Fund) 11

List of Abbreviations IMF KritE

International Monetary Fund Kritiki Epitheorissi Nomikis Theorias kai Praxis (Critical Revue of Legal Theory and Praxis) L.D. Law Decree NoV Nomiko Vima (Legal Tribune) PChr Poinika Chronika (Penal Chronicles) P.D. Proedriko Diatagma (Presidential Decree) PeirN Peiraiki Nomologia (Piraeus Jurisprudence) PerDik Perivallon kai Dikaio (Environment and Law) RHDI Revue Hellénique de Droit International SEAK Syntomi Ermineia Astikou Kodika (Concise Interpretation of the Greek Civil Code) SEpSygkD Sygchroni Epitheorissi Sygkoinoniakou Dikaiou (Contemporary Transport Law Review) TPCL Efarmoges Astikou Dikaiou (Theory and Practice of Civil Law)

12

1–3

General Introduction

§1. GENERAL BACKGROUND OF THE COUNTRY I. Geography 1. Greece, a Member State of the European Union (EU) since 1979, covers an area of 131.990 m2 in the South-East of Europe, at the most southern part of the Balkan Peninsula having borders to the northwest with Albania, to the north with the Republic of North Macedonia and Bulgaria and to the northeast with Turkey and is surrounded by the Ionian Sea in the West, the Aegean Sea in the East and the Libyan Sea in the south. Eighty per cent of the country is covered by mountains; 27% of the total area is cultivated.1 The coastline is extended to 13,676 km, which is more than half of the African coastline, and Greek islands (more than 2,500 of which more than 160 are inhabited) cover 19% of the territory. The capital of Greece is Athens, and the major cities are: Thessaloniki, Patra, Irakleio, Volos and Larissa. Crete is the largest Greek island and the fifth largest in the Mediterranean. Southern of Crete is Gavdos, the southernmost point of Greece and Europe. The largest plains are Larissa, Thessaly and Giannitsa in Central Macedonia. Geographically, Greece is divided into nine districts, which are divided into fifty-one prefectures. 2. The official language is Greek, and the currency, after 2001, is the Euro (before 2001, the national currency was the Greek drachma (GRD) (EUR 1 = GRD 340.75). As of 1 January 2021, Greek population was 10,678,632 people, according to the Greek Statistical Office; today Greek population is estimated to be 11.03 million. II. History 3. The history of Greece dates back many millennia. Findings indicate settlements dating from the Paleolithic Period (11000–3000 BC). During the second millennium, the following three great civilizations emerged: the Minoan (2600–1500 BC), the Mycenaean (1500–1150 BC) and the Cycladic Aegean. The ‘Classical Period’ of Greece (6th c.–4th c. BC) is considered the Golden Age of the Ancient 1. Source: Greek Law Digest 2012, p. 4.

13

4–6

General Introduction

Greece. During these years, the most important Greek philosophers and mathematicians have gifted the world with ideas that exist until today. Following this brief historical synopsis, the Macedonian Culture emerged with Alexander the Great, then the Roman Empire and Byzantium. The fall of Constantinople in 1453 is considered the ending of the ancient Greek era and is followed by the period of Turkish occupation which lasted almost four hundred years. It ended after the Greek Revolution in the first half of the nineteenth century. 4. The history of modern Greece essentially begins with the Greek revolution of 1821 and the recognition of independence of the Greek State in the year 1828. The first Head of State of newly liberated Greece was Kapodistrias with the title of ‘Kyvernetes’, appointed by the National Assembly. From 1832 to 1974, the Greek State was a kingdom (with some intervals), and after 1974, modern Greece became a republic. The governance period of Greece from 1974 till today after the fall of the dictatorship which lasted seven years (1967–1974) is called the Third Greek Republic. The period starting from 1821 until the establishment of the Kingdom of Greece by King Otto in 1832 is the first Greek Republic; the second Republic started from 1924 till the 1935 coup d’ etat. Also, Constitutional Democracy was the form selected by the Greek people in the referendum of 8 December 1974 which led to the enactment of the Constitution of 1975. The Constitution was subsequently amended in 1986, 2001, 2008 and 2019. III. Political System 5. Greece is a Presidential Parliamentary Republic with a unicameral Parliament of three hundred seats. Members of the Parliament are elected by direct popular vote every four years. The Head of the State is the President of the Republic who is elected by the Parliament for a five-year mandate. The first woman President, the former first woman President of the Council of the State, Mrs Aikaterini Sakellaropoulou, was elected in 2020. The Prime Minister and the Ministers consist of the Government. The legislative, executive and judicial authorities are distinct from each other and are exercised as follows: the legislative by the Parliament and the President of the Republic, the executive by the Government and the judicial by the judges of the courts. 6. Under Article 102 § 1 of the Greek Constitution, the administration of local affairs belongs to the ‘local government agencies’ (principle of decentralization), each one of which is entrusted by acts of Parliament with significant decisionmaking powers within its region. These ‘local government agencies’ are administratively as well as financially independent from the central government (Article 102 § 2 of the Greek Constitution). Nevertheless, they are subject to State supervision, which, however, is limited to the legality of their activity (Article 102 § 4 of the Constitution). After L. 3852/2010 which put into force the programme ‘Kallikratis’, Greece is administratively divided into municipalities and districts. 14

General Introduction

7–10

Municipalities and districts are public law legal persons which comprise the ‘local government agencies’ of first and second degree, respectively (Articles 1 and 3 of L. 3852/2010). IV. Economic and Social Values 7. Greece has a mixed capitalist economy with the public sector contributing to half of the gross domestic product (GDP). Classified as an advanced, high-income economy, the main large sectors of the Greek economy are tourism, shipping, industrial food production and tobacco processing, textiles, chemicals, metal products, mining and oil refining plants. 8. Greece is a founding member of the Organisation for Economic Co-operation and Development and joined what is now the EU in 1981. Greece is also a member of the International Monetary Fund (IMF) and of the World Trade Organisation. 9. In 2001, Greece adopted the Euro as its currency. Until the Great Recession and the Greek government-debt crisis, Greece was a prosperous country with a better average annual GDP growth than most European Countries. In May 2010, Greece signed a Memorandum with the IMF, the EU and the European Central Bank to meet the loan needs of the country as the debt had grown out of proportion. After six years of economic decline and strict austerity measures, Greece achieved a real GDP growth rate, but unfortunately fell back into recession in 2015. Steps to overcome the recession were successful, but the Covid situation that has impacted all countries all over the world has not left Greece unaffected. 10. The respect and protection of the values that form the existence of the human being consist of the primary obligation of the Greek State (Article 2 § 1 of the Greek Constitution), and the right for a general and personal freedom is considered as the ‘main general fundamental right’ (Article 5 § 1 of the Constitution).2 Another obligation of the Greek State is the protection of the natural and cultural environment (Article 24 of the Constitution). Personality and environment form a unity, which means that every offence to the environment entails an offence to the value and the personality of the human being, the latter having the right to a healthy and viable environment. The right of the personality established by Articles 57 ff. of the Greek Civil Code (GCC) finds its expression in the above three articles of the Constitution.3 These provisions of the GCC, as well as others thereof (such as Articles 281 on the abuse of rights, 914 and 919 on torts, and 1003–1005, 1027, 1108 on ownership), are interpreted in the light of the above articles of the Constitution; that is, they are interpreted in such a way that the personality of the human being as well as the environment are respected as primary values. 2. See, i.a., I. Karakostas, Environment and Law, 3rd edn., 2011, p. 292; see also at the same page notes 691 and 692 for more references. 3. I. Karakostas, Environment and Law, p. 292.

15

11–13

General Introduction

11. The provisions of the Constitution, thus, have an indirect effect on the private law, and they apply to it through general clauses and provisions of the civil legislation.4 This is the so-called interpretation of the law in conformity to or in harmony with the Constitution,5 a method developed first in the German law with a series of decisions of the Federal Constitutional Court, adopted by the French Conseil Constitutionel, and applied at a continuously increasing rate in Greece.6 12. The existence of a wide scale of general clauses in the GCC, which are based on the principle of equity, is considered as one of its main features. For the interpretation of these general clauses, it is necessary to take into consideration the social, moral and economic notions and values of the society. After the adhesion to the European Communities, the social, moral and economic notions and values of the Greek society are influenced, at a constantly growing rate, by the notions and values of the European Community, as they are expressed in the Community Law, even if the latter does not have immediate force in the internal law. For example, the notions of good faith, of public order, of good morals, of conventional mores, of the social or economic purpose of rights cannot be concretized today without the principles of the Community Law, as these are specified mainly by the European Court. Article 86 of the European Convention and other analogous provisions and principles of the Community Law give crucial criteria for the interpretation of Articles 178, 281, 288, etc., of the GCC. That means that the Community Law has an indirect effect on the Greek internal law.7 13. To what regards the development of Family law, though for long, under the influence of the Greek orthodox church, there was a vivid objection in recognizing that people who live together can form a family, recently the Cohabitation Pact between adults, regardless of their gender, has been recognized by the legislator (L. 4356/2015), a change that reflects the impact of the changed social context on the law. This recent law will surely lead to the consideration by the Court of Cassation that those who live together under a cohabitation pact form a family8 and to

4. Ibid. 5. According to the term used by Pr. Dagtoglou, General Administrative Law, 2nd edn., 1984, p. 99, no. 293, translating the German term ‘verfassungskonforme Gesertzesauslegung’. For this kind of systematic interpretation of the law see, i.a., in Greek literature, ibid., as well as Gr. Kassimatis, ‘Constitution and Ordinary Law’, in the vol. ‘The Influence of the 1975 Constitution on the Private and Public Law’, pp. 130 ff.; A. Gerontas, ‘The Interpretation of the Law in Conformity to the Constitution’, in the legal periodical ‘To Syntagma’ (To S, =‘The Constitution’), 8 (1982), pp. 1 ff.; Ph. Doris, note under the decision of the Athens Court of Appeal (=EfAth) no. 6761/1984, pp. 1557–1559; Ath. Papachristou, ‘The Protection of the Personality and the Article 299 GCC’, The Constitution 7 (1981), p. 57; M. Stathopoulos, Law of Obligations, General Part, 5th edn., 2018, § 1 III, pp. 15–20, nos 33–37. 6. Ap. Georgiades, General Principles of Civil Law, § 6, p. 65, no. 43. 7. M. Stathopoulos & Ar. Chiotellis & M. Avgoustianakis, Community Civil Law I, pp. 11, 12; I. Karakostas, Community Rules and National Civil Law I, p. 48. 8. Of the same view, I. Spyridakis, Four Issues on Moral Harm, TPCL 2 (2009) 1027–1029; id., The Cohabitation Pact of L. 3719/2008, 2009, p. 57 f.; A. Kritikos, Compensation for Car Accidents, Vol. I, § 20 IV, p. 600, no. 39.

16

General Introduction

14–17

the reverse of its position expressed in several decisions,9 according to which only marriage is protected by the Greek Constitution and that persons who cohabit even for a long period of time are not considered members of the family and they cannot seek compensation for pain and suffering in case of death of their beloved person according to Article 932 GCC.10 14. Greece allows medically assisted human reproduction (artificial fertilization) only in order to treat the incapacity to have children by natural way or to avoid the transmission of a severe genetic disease to the child or to preserve fertility, regardless of the existence of a medical necessity. Such medical assistance is permissible up to the reproductive age of the assisted person. Human reproduction by the method of cloning is prohibited. Gender selection of the child to be born is prohibited, unless a severe hereditary gender-related disease is to be avoided. Donation of genetic material among relatives is allowed only among relatives in collateral line (Article 1455 GCC, as recently modified by Article 8 of L. 4958/2022). 15. Assisted reproduction after the death of the spouse or the partner is allowed by court authorization and only if both of the following requirements are met: – The spouse or the partner suffered from a disease that either could affect fertility performance or endanger his life. – The spouse or the partner had consented via a notary document for post-mortem fertilization. Assisted reproduction is carried out not before six months and not after two years from the death of the spouse or partner (Article 1457 GCC). 16. Greece also belongs to the few countries that allow the transfer of fertilized ova to another woman and pregnancy by the latter. A court authorization should be issued before the transfer, provided that there is a written agreement of all involved parties (those wishing to have a child, the surrogate mother and her husband, if she is married), and that no financial benefit derives from such agreement. The court authorization is issued following an application of the woman who wants to have a child, provided that evidence is adduced not only in regard to the fact that she is medically unable to conceive but also in regard to the fact that the surrogate mother is in good health condition and able to conceive (Article 1458 GCC). §2. LEGAL SYSTEMS I. Primacy of Legislation and Codification 17. Greece belongs to the Romanic families of law. Its legal system is located somewhere in between the French and the German Legal Family, although it seems 9. For more details (in English), see E. Dacoronia, Greece, in H. Koziol & B.C. Steininger (eds), European Tort Law 2009 (2010), pp. 283–285, nos 35, 37 and 40. 10. For an analysis of Art. 932 GCC see infra, Part VI, Ch. 4, no. 259 ff.).

17

18–19

General Introduction

to approach the German one much more. The influence of French legislation and doctrine may be traced back to the first revolutionary assemblies (Epidaurus, 1822, Astros, 1823, Trizena, 1827), which adopted liberal and democratic constitutions modelled on the French Declaration of Human Rights. Nowadays, the influence of French models is confined to commercial and administrative law. As far as the civil law is concerned, it was influenced by the work of the German Pandectists, while the redaction of the German Civil Code was used as a pattern for the GCC. The codification project on civil law started in 1930 with the appointment of a fivemember committee and resulted in the passage of the Civil Code of 1940, which was scheduled to become effective on 1 July 1941. By that time, however, Greece had been overrun by the Axis forces. After the liberation of the country, a revised version was put into effect in 1945; it was subsequently repealed, and the original 1940 Code was given the force of law retroactively from 23 February 1946.11 The GCC is divided into five books (General Principles, Law of Obligations, Property Law, Family Law and Law of Succession) and comprises 2,035 articles, among which the provisions on tort law are found (Articles 914–938 GCC). II. Position of the Judiciary 18. According to Article 87 of the Greek Constitution, justice is administered by courts composed of regular judges who enjoy functional and personal independence. When exercising their duties, judges are subject only to the Constitution and the laws; in no case whatsoever are they obliged to comply with provisions enacted in violation of the Constitution. Regular judges are inspected by judges of a superior rank, as well as by the Public Prosecutor and the Deputy Prosecutor of the Supreme Civil and Criminal Court; Public Prosecutors are inspected by the Supreme Civil and Criminal Court judges and Public Prosecutors of a superior rank, as specified by law. 19. According to Article 88 of the Greek Constitution, judges are appointed by presidential decree in compliance with a law specifying the qualifications and the procedure for their selection and are appointed for life. Their remuneration is commensurate with their office. Matters concerning their rank, remuneration and their general status are regulated by special statutes. A training and trial period of up to three years prior to their appointment as regular judges may be provided for by law.12 During this period, they may also act as regular judges, as specified by law. Judges may be dismissed only pursuant to a court judgment resulting from a criminal conviction or a grave disciplinary breach or illness or disability or professional incompetence, confirmed as specified by law and in compliance with the provisions of Article 93 §§ 2 and 3. Retirement from the service of the judiciary is compulsory upon attainment of the age of 65 years for all judges up to and including the rank of Court of Appeal judge or Deputy Prosecutor of the Court of Appeals, or a rank 11. See also Jan M. Smiths (ed.), Elgar Encyclopedia of Comparative Law, Ch. 31, §§ 1 and 3, pp. 371, 373. 12. This period has been designated by law to two years.

18

General Introduction

20–22

corresponding thereto. In the case of judicial functionaries of a rank higher than the one stated, or of a corresponding rank, retirement is compulsory upon attainment of the age of 67 years. In the application of this provision, the 30th of June of the year of retirement shall in all cases be taken as the date of attainment of the above age limit. Transfer of judges to another branch is prohibited. Exceptionally, the transfer of regular judges shall be permitted to fill up to half of the posts of Deputy Prosecutor in the Supreme Civil and Criminal Court as well as to fill up posts of associate judges to Courts of First Instance, or of associate prosecutors to public prosecutors offices; the transfer shall be permitted upon request of those concerned, as specified by law. 20. According to Article 89 of the Greek Constitution, judges are prohibited from performing any other salaried service or practising any other profession. Exceptionally, they may be elected members of the Academy or members of the teaching staff of Universities, and they may sit on special administrative courts and on councils or committees. The assignment of administrative duties to judges is prohibited. Duties related to the training of judges are considered judicial. Judges may be assigned the task of representing the country in international organizations. Conducting arbitration is allowed to judges only within the framework of their official duties, as provided by law. Their participation in the Government is prohibited. The establishment of an association of judges is permitted, as specified by law. 21. According to Article 90 of the Greek Constitution, promotions, assignments to posts, transfers, detachments and transfers to another branch of judges are effected by presidential decree, issued after a prior decision by the Supreme Judicial Council. This Council is composed of the president of the respective highest court and of members of the same court chosen by lot from among those having served in it for at least two years, as specified by law. The Prosecutor of the Supreme Civil and Criminal Court participates in the Supreme Judicial Council on civil and criminal justice, while the General Commissioner of State to the Court of Auditors shall participate in the corresponding judicial council. 22. According to Article 91 of the Greek Constitution, disciplinary authority over judges from and above the rank of member of the Supreme Civil and Criminal Court or Deputy Prosecutor of the Supreme Civil and Criminal Court, or a rank corresponding thereto, is exercised by a Supreme Disciplinary Council, as specified by law. Disciplinary action is initiated by the Minister of Justice. The Supreme Disciplinary Council is composed of the President of the Supreme Administrative Court (the Council of the State) as Chairman, and of two Vice Presidents or Councillors of the Supreme Administrative Court, two Vice Presidents or members of the Supreme Civil and Criminal Court (Court of Cassation), two Vice Presidents or Councillors of the Court of Auditors and two law professors from the Law Schools of the country’s universities, as members. The members of the Council shall be chosen by lot from among those having at least three years of service in the respective highest-in-rank court or in a law school. Members belonging to the court of which the conduct of one of the judges, prosecutors or commissioners the Council has been called on to judge shall be excluded. In cases involving disciplinary action against 19

23–27

General Introduction

members of the Supreme Administrative Court, the Supreme Disciplinary Council is presided over by the President of the Supreme Civil and Criminal Court. 23. The disciplinary authority over all other judges shall be exercised, in the first and second instance by councils composed of regular judges chosen by lot, as specified by law. Disciplinary action may also be initiated by the Minister of Justice. Disciplinary rulings in accordance with the provisions of this article are not subject to remedies before the Supreme Administrative Court. III. Distinction Between Public and Private Law 24. The Greek legal system distinguishes between private and public law. The Greek Constitution provides in Article 94 that the hearing of substantive administrative disputes belongs to the jurisdiction of existing ordinary administrative courts (Article 94 § 1), while civil courts have jurisdiction on all private disputes (Article 94 § 2). 25. Various theories have been expressed in the Greek legal theory trying to answer the question on the basis of which criterion a rule of law belongs to private or public law. The subjective theory, i.e., the theory that uses the subject of the rule of law as criterion for the distinction, is prevailing in theory and jurisprudence. If the subject of a rule of law is the State or a legal entity of public law, the particular rule of law is characterized as belonging to public law. With the lapse of time, though, there is a tendency to adopt the theory of authority, according to which if the subject of a rule of law is the State or a legal entity of public law does not suffice in order to characterize the rule of law as a public one; a public authority must be actually exercised in the particular case.13 26. Thus, according to the above, private law is comprised of all rules of law that regulate the relations between private persons (natural persons or legal entities) who do not exercise a public authority in the particular case. Public law comprises all rules of law that regulate the organization and function of the State and of all public authorities as well as the relations of these authorities among themselves or their relations with private persons.14 IV. Sources of Private Law in General and of Tort Law in Particular 27. According to the GCC (Article 1), law and customs are the two primary sources of law, primarily in the meaning that they do not draw their strength from 13. See, i.a., Ap. Georgiades, General Principles of Civil Law, § 4, pp. 34–36, nos 2–9; id., in Georgiades SEAK I, Art. 1 no. 8. 14. See, i.a., Ap. Georgiades, General Principles of Civil Law, § 4, pp. 33–34, no. 1; id., in Georgiades SEAK I, supra (fn. 13).

20

General Introduction

28–30

another source of law.15 Also, according to the Greek Constitution (Article 28), the generally recognized rules of international law belong to the primary sources of law.16 According to the same article of the Constitution, international conventions belong to the sources of law, though to the secondary ones, as they become an integral part of domestic Greek law and prevail over any contrary provision of the law only from the time they are ratified by statute.17 28. EU law is also a source of law.18 The initial conventions that have founded the EU,19 as well as the regulations issued by the EU, belong to the primary sources of law. European regulations do not need any ratification by the Greek Parliament, but are valid in Greece from the moment they are enacted;20 the directives, however, need to be transformed as internal statutes through a certain instrument (statute voted by Parliament, ministerial decree, etc.) and their validity when compared to other internal laws will depend on the relevant validity of this instrument.21 29. Accordingly, source of tort law are the provisions of tort law found in the GCC (Articles 914 f.) as well as several auxiliary statutes enacted mainly in order to cope with the problem of civil liability deriving from the use of sources of increased risk that may lead to mass accidents, such as motor vehicles and atomic energy.22 §3. FUNCTION OF THE LAW OF TORTS (INDEMNIFICATION; PREVENTION; SANCTION?) 30. The aim of the Greek Law of Torts is to help the victim annihilate the detrimental consequences of the damage-causing event, not to make him richer or to punish the tortfeasor. Thus, the fundamental function of the Greek Law of Torts is to fully indemnify the victim.23 In connection to this function is the function of the Greek Law of Torts as an organ which guarantees the rights of individuals.24 15. See, i.a., Ap. Georgiades, General Principles of Civil Law, § 2, p. 18, no. 3.; id., in Georgiades SEAK I, Art. 1 no. 10. 16. See, i.a., Ap. Georgiades, General Principles of Civil Law, § 2, p. 20, 21, no. 14; id., in Georgiades SEAK I, Art. 1 no. 17. 17. See, i.a., Ap. Georgiades, General Principles of Civil Law, § 2, pp. 21–22, no. 17; id., in Georgiades SEAK I, Art. 1 no. 26. 18. Ap. Georgiades, General Principles of Civil Law, § 2, p. 21, no. 15; id., in Georgiades SEAK I, Art. 1 no. 18. 19. See, among many others, Ap. Georgiades, General Principles of Civil Law, § 8, pp. 93–94, nos 1–2. 20. Id., supra (fn. 19), p. 103, nos. 35–36. 21. Id., supra (fn. 19), pp. 103–104, nos 37–38. 22. For a list of these statutes see infra, nos. 124 f. 23. Ap. Georgiades, Law of Obligations, General Part, 2nd edn., 2015, § 59, p. 646, no. 19; G. Georgiades, in Georgiades SEAK I, Introductory Notes on Arts 914–938 no. 4; M. Georgiadou, in I. Karakostas, Civil Code: Interpretation – Commentaries – Jurisprudence, Law of Obligations, Special Part, Athens, 2009, Introductory Notes on Arts 914–938 no. 23; P. Kornilakis, Law of Obligations, Special Part I, 2002, § 81 2, p. 473. 24. M. Georgiadou, in I. Karakostas, Civil Code, Introductory Notes on Arts 914–938 no. 4; P. Kornilakis, Law of Obligations, Special Part I, § 81 2, p. 474; M. Stathopoulos, Law of Obligations, § 15 I, pp. 939, 940, no. 3.

21

31–34

General Introduction

31. Prevention is also one important function of the Greek Law of Torts. The Greek legal order, by imposing an obligation to pay damages for the damage caused when at fault, also aims at urging individuals to take care, not to cause damage to others so as to avoid the obligation to pay damages. Not only liability based on fault but also strict liability can play a preventive role. And this is because damage that is accidentally caused cannot be prevented, but if special care is shown, the chances of an ‘accidental’ damage can be reduced.25 32. Finally, loss spreading or loss distribution of the economic consequences of the damage to a wider circle of persons is also one of the functions of the Greek Law of Torts. Damage must be apportioned to more persons and not burden only one person.26 33. Punishment of the tortfeasor is left to Penal law which will impose the punishment for the act, while the Greek Law of Torts focuses on the detrimental result of the act which has to be indemnified.27 §4. RELATIONSHIP BETWEEN TORTS AND CRIMINAL LAW 34. Tortious liability is differentiated from criminal liability, as they have different aims and use different means.28 More particularly: – Tortious liability aims at the indemnification of the damage, i.e., at the protection of a private interest, and it uses the obligation for damages as means in order to satisfy this aim. On the contrary, criminal liability aims at the protection of the public interest from the dangers that the behaviour of the perpetrator entails, irrespective of whether this behaviour caused damage or not; means used by criminal law is the imposition of a penalty, a sanction that serves the idea of general and specific deterrence, mainly aiming at discouraging the perpetrator or any other person from committing similar acts or omissions.29

25. Ap. Georgiades, Law of Obligations, General Part, § 65, p. 744, no. 2; P. Kornilakis, Law of Obligations, Special Part I, § 81 2, p. 475. 26. Kornilakis, supra (fn. 25). 27. Ap. Georgiades, Law of Obligations, General Part, § 59, pp. 646–647, nos 19–23; G. Georgiades, in Georgiades SEAK I, Introductory Notes on Arts 914–938 nos 13–17; P. Kornilakis, Law of Obligations, Special Part I, § 81 2, p. 476. 28. Ap. Georgiades, Law of Obligations, General Part, § 59, pp. 646–647, nos 19–23; G. Georgiades, in Georgiades SEAK I, Introductory Notes on Arts 914–938 nos 13–17; P. Kornilakis, Law of Obligations, Special Part I, § 78 3, p. 459; M. Stathopoulos, Law of Obligations, § 15 I, pp. 939–941, nos 3–5. 29. Ap. Georgiades, in Ap. Georgiades & M. Stathopoulos (eds), Civil Code, Vol. IV, Law of Obligations: Special Part, 1982, Introductory Notes on Arts 914–938 no. 11; G. Georgiades, in Georgiades SEAK I, Introductory Notes on Arts 914–938 no. 13; P. Kornilakis, Law of Obligations, Special Part I, § 78 3, p. 460; M. Stathopoulos, Law of Obligations, § 15 I, p. 939, no. 3.

22

General Introduction

35–35

– The GCC uses general clauses for civil liability (Articles 914 and 919 GCC) which have a very broad field of application; criminal liability is born only when certain acts are committed which are specifically defined in the Greek Penal Code (GPC) and other penal laws.30 – In case of tortious liability based on fault, any degree of fault (intent or negligence) suffices for the obligation for damages to be born. On the contrary, criminal liability is born when the punishable acts described in the law are committed out of intent and, only as an exception, when they are committed out of negligence (Article 26 GPC).31 – In case of tortious liability based on fault, the tortfeasor has to cover all damage sustained irrespective of the degree of fault. The perpetrator of a criminal act is punished in a harsher or more lenient way depending on the degree of fault.32 – Some acts, such as theft and embezzlement, are in the same time torts and criminal offences, while others are only torts, such as the destruction of a foreign property out of negligence, or only criminal offences such as a murder attempt that caused no damage.33 §5. RELATIONSHIP BETWEEN CONTRACTUAL AND DELICTUAL OR TORTIOUS RESPONSIBILITY: CONCURRENCE OF THE CONTRACTUAL AND THE DELICTUAL LIABILITY (WHAT ABOUT PRECONTRACTUAL LIABILITY?) 35. Though it may be argued that the specific provisions governing the violation of contractual obligations (Articles 330, 335 f., 362 f., 382 f. GCC), as special provisions, prevail over those regarding tortious liability and they do not concur with them (principle of non cumul), it is accepted by Greek jurisprudence and approved by commentators34 that when the act or omission which constitutes the contractual non-performance is simultaneously and in itself unlawful, the two liabilities, the delictual one and the contractual one, concur (principle of cumul).35 When a contractual non-performance is not in itself unlawful, i.e., it is not contrary to this 30. 31. 32. 33.

Kornilakis, supra (fn. 29). Kornilakis, supra (fn. 29); M. Stathopoulos, Law of Obligations, § 15 I, p. 941, no. 5. Kornilakis, supra (fn. 29). Ap. Georgiades, in Ap. Georgiades & M. Stathopoulos (eds), Civil Code, Introductory Notes on Arts 914–938 no. 12; G. Georgiades, in Georgiades SEAK I, Introductory Notes on Arts 914–938 no. 14; P. Kornilakis, Law of Obligations, Special Part I, § 78 3, pp. 460, 461; M. Stathopoulos, Law of Obligations, § 15 I, pp. 940–941, nos 4–5. 34. See relatively P. Kornilakis, Law of Obligations, Special Part I, § 79 4, pp. 461 ff., where also (p. 462, fn. 3) reference to the abundant relative jurisprudence is made; P. Kornilakis, Law of Obligations, Special Part (2000), § 104, p. 339, note 4; M. Stathopoulos & A. Karampatzos, Contract Law in Greece (in English), 3rd edn., 2014, no. 41; M. Stathopoulos, Law of Obligations, General Part, § 15II, p. 944, no. 10. See also, AP 967/1976 (full bench) EllDni 15 (1974) 514; AP 555/1999 DEE 6 (2000) 190 = EEmpD 51 (2000), 752 with a note of Chr. Chrysanthis, at p. 713; 587/ 2002 (2002) ChrID B/2002, 605, 606, for more decisions (in English), see E. Dacoronia, Greece, in H. Koziol & B.C. Steininger (eds), European Tort Law 2001–2009 (2002–2010), in K. Oliphant & B.C. Steininger (eds), European Tort Law 2011 (2012), 2012 (2013), and in E. Karner & B.C. Steininger (eds), European Tort Law 2013 (2014), 2014 (2015). 35. See also M. Stathopoulos & A. Karampatzos, Contract Law in Greece (in English), pp. 50–51, no. 41.

23

36–37

General Introduction

general duty of ‘not culpably damaging another’, which is imposed by law, no concurrence of contractual and delictual liability exists; in such a case, only the provisions regarding the violation of contractual obligations apply,36 which means that compensation for moral harm in case of violation of the contract cannot be awarded. 36. An act or omission is unlawful, independently from the contractual relationship, when such act or omission is contrary to the general duty of not culpably provoking damage to somebody else. Concurrence of the contractual and the delictual liability means that two individual claims are born (one from the delictual act and the other from the non-performance of the contractual obligation). These claims have the same aim, i.e., the compensation for the particular damage. The person who sustained the damage has the right to choose the one or the other claim as best serves his interests, with the only restriction that the exercise of the one claim and its relevant satisfaction bear as consequence the extinction of the other claim. The said delictual and contractual claims are each governed by different rules, and therefore the claim from the delictual act on the one hand is submitted to the five-year prescription period from the time the victim has had knowledge of the damage and of the person bound to pay damages provided by Article 937 GCC, the claim from the non-performance of the contractual obligation, on the other hand, is submitted to the general twenty-year prescription provided by Article 249 GCC or to any other shorter specific prescription37 (‘free concurrence of claims’).38 37. It has been held by the Greek Court of Cassation (in Greek Areios Pagos (AP))39 that free concurrence of claims exists, e.g., when by an act or omission the absolute right of ownership is infringed and the good is lost, destroyed or cannot be used by the owner; it is immaterial whether the above-mentioned act or omission has been committed by the debtor himself or by another person appointed by the debtor to perform, when acting in the execution of his task. This other person is also liable against the creditor but only on the delictual basis, as there is no contractual relationship between him and the creditor. Thus, in the case of a contract of transport by road within Greek territory, the forwarding agent has, according to the principle of good faith, the secondary obligation to take all measures in order to safeguard the goods and avoid any danger of losing the goods during the transport 36. See Stathopoulos & Karampatzos, supra (fn. 35); M. Stathopoulos, Law of Obligations, General Part, § 15 II, p. 945, no. 11. 37. See, e.g., the one-year prescription of Art. 148 of the Greek Code of Private Maritime Law. In this case the prescription of the claim for the non-performance of the contractual obligation does not entail the prescription of the claim based on tort (AP 967/1976 (full bench), supra (fn. 34); AP 1145/ 2003 2003 EllDni 45 (2004) 458 = DEE 10 (2004) 1179 = EEmpD 2004, 819 = ChrID Δ/2004, 55, followed by comments of El. Kastrissios (for a brief summary of the facts and the judgment of the Court (in English) in the said case see E. Dacoronia, Greece, in H. Koziol & B.C. Steininger (eds), European Tort Law 2003 (2004), pp. 217–218, nos 18–20). 38. For the disadvantages of the free concurrence of claims see, from the most recent bibliography, P. Kornilakis, Law of Obligations, Special Part, I (2002), § 79 4 Iiβ, 463, 464. 39. AP 1538/2002, published in NOMOS database (for a brief summary (in English) of the facts and the judgments of said decision as well as a short commentary thereof, see E. Dacoronia, Greece, in H. Koziol & B.C. Steininger (eds), European Tort Law 2002 (2003), pp. 231–233, nos 2–6).

24

General Introduction

38–39

by chance. If the forwarding agent uses somebody else, a driver, to fulfil his obligations and such other person omits, by negligence, to undertake the abovementioned measures, the owner of the goods has a claim based on torts against both, if, due to the omission of the driver to take all appropriate measures, the goods have been stolen and therefore lost for the owner. This claim of the owner is submitted to the five-year prescription of Article 937 of the GCC and not to the six-month prescription of Article 107 of the Greek Commercial Law. 38. As mentioned hereinabove, no concurrence of the delictual and the contractual liability exists when the contractual non-performance is not in itself unlawful. In such a case, only the provisions regarding the violation of contractual obligations apply.40 Accordingly, it has been held that delictual liability against the Bank could not be substantiated when thieves broke into it and stole the jewellery of the plaintiff which she kept in a safety-box she had leased in the vault of the Bank, because, according to the Court, the culpable behaviour attributed to the organs and employees of the Bank – i.e., the alleged violation of the contractual obligation to ensure that the plaintiff’s jewellery would be safely kept would not be unlawful without the contractual relationship from which such obligation stems.41 It has also been held that the delay in delivering the baggage of a flight because of the negligent behaviour of the carrier’s employees only constitutes a breach of contract and cannot qualify as a tort, given that the acts of the employees (loading of the baggage to another aircraft out of negligence and the delayed delivery thereof) refer to the way of execution of the carriage contract and cannot be envisaged without it; as a consequence, no liability for damages and compensation for moral harm is born on the ground of torts (Articles 914 and 932 GCC).42 39. When the two liabilities, delictual and contractual, concur, the majority of Greek scholars consider that it is more correct dogmatically to accept that not two independent claims are born (Anspruchskonkurrenz) but only one, founded on two different legal bases (Anspruchsnormenkonkurrenz).43 There are no important practical reasons, however, that dictate this choice.44

40. See M. Stathopoulos, Law of Obligations, General Part, § 15 II, p. 945, no. 11. 41. AP 1123/2006 ChrID ΣT/2006, 974 (for a brief summary (in English) of the facts and the judgments of said decision as well as a short commentary thereof, see E. Dacoronia, Greece, in H. Koziol & B.C. Steininger (eds), European Tort Law 2006 (2007), pp. 240–243, nos 11–16). 42. EfAth 1531/2011 Episkopissi Emporikou Dikaiou (Review of Commercial Law, EpiskEmpD) 17 (2011) 861 with an introductory note of K. Pamboukis, EpiskEmpD 17 (2011) 862, 863 = DEE 17 (2011), 936 (for a brief summary (in English) of the facts and the judgments of said decision as well as a short commentary thereof, see E. Dacoronia, Greece, in K. Oliphant & B.C. Steininger (eds), European Tort Law 2011 (2012), pp. 280–283, nos 3–4, 6, 8). 43. For the advantages of the said view, mainly expressed by Ap. Georgiades, Die Anspruchskonkurrenz im Zivilrecht und Zivilprozeßrecht (1968), see P. Kornilakis, Law of Obligations, Special Part, I, 465, 466. 44. M. Stathopoulos, Law of Obligations, General Part, § 15 II, pp. 945–948, nos 12–13α.

25

40–43

General Introduction

I. Precontractual Liability 40. According to Greek law, at the stage of negotiations for the conclusion of a contract, the parties must deal with each other according to the dictates of good faith and conventional mores (Article 197 GCC), and a person who, in the course of negotiations for the conclusion of a contract, has through his fault caused prejudice to the other party is liable for compensation even if the contract has not been concluded (Article 198 GCC). So, precontractual liability or otherwise, liability from negotiations, is the liability which originates against the person with whom the responsible person has entered into negotiations. 41. As far as the nature of the precontractual liability is concerned, it is accepted that precontractual liability is a special case of liability ex lege, given that it is provided in Article 198 GCC.45 It has been argued that it resembles tort liability because it does not presuppose the existence of a contract,46 or that it resembles more to contractual liability due to the personal bond and the relation of trust which are created between the parties during the stage of negotiations, which contribute to the forming of a legal obligation in a wide notion. 42. There is no unanimity in Greek theory on the issue of how the gaps in the regulation of precontractual liability are to be filled. Other scholars argue that the provisions on tort liability apply by analogy, others that the provisions on contractual liability apply by analogy, others are of the intermediate opinion that from the provisions governing the contractual or the tortious liability, the provision that fits each particular case is to be chosen.47 It is to be noted, however, that Article 198 § 2 GCC explicitly provides that the provision on the prescription of the tortious claim (Article 937 GCC) applies by analogy for the prescription of the claim deriving from precontractual liability, indicating to our view the tortious nature of the precontractual liability. §6. PROTECTED INTERESTS (ARE ALL INTERESTS EQUALLY PROTECTED; ARE SUBJECTIVE RIGHTS MORE PROTECTED THAN OTHERS?) I. Breach of an Absolute Right 43. According to Greek law, an unlawful behaviour in the meaning of Article 914 GCC exists in case of violation of a right (or, better expressed, of the good which is the object of the right).48As a principle, the right must be an absolute 45. Ap. Georgiades, General Principles of Civil Law, § 34, pp. 445–450, nos. 1–14; G. Lekkas, in Georgiades SEAK I, Arts, 197–198 no. 1 with more references to the related Greek literature; M. Stathopoulos & A. Karampatzos, Contract Law in Greece, Part 1, Ch. 1, p. 78, no. 84. 46. See, i.a., Lekkas, supra (fn. 45). 47. See for more details id., 197–198 no. 2. 48. P. Kornilakis, Law of Obligations, Special Part, I, 2002, § 84 3. I, p. 484.

26

General Introduction

44–45

one,49 such as the right to the personality (honour, health, reputation, body integrity, etc., in parallel to the protection given by Articles 57–59 GCC), the right of ownership or of another real right, the right of intellectual property, a personal family right (e.g., the parental care or the right of communication with the child), the hereditary right, etc. When such a right is violated, then a claim in tort for damages is born. II. Breach of the Marital Duty of Loyalty 44. Greek law does not explicitly regulate whether a spouse who has sustained emotional pain and pecuniary damage (such as the expenses for the divorce and for challenging the paternity of the child, possibly born out of the extramarital relationship, the maintenance already paid for said child, the investigation expenses for finding out about the violation of the marital duty, etc.) because of the extramarital relationship of the other spouse with a third person has a claim for damages, either against the ‘offending’ spouse or against both the spouse and the third person. Accordingly, there is a discussion in legal doctrine and jurisprudence on the issue. 45. Some authors accept that a breach of the marital cohabitation duty by third parties constitutes an unlawful act; thus, the ‘innocent’ spouse has a claim on the basis of tort provisions (Article 914 f GCC).50 According to a recently expressed thereon view,51 if the ‘innocent’ spouse has sustained damage, such spouse has a claim against both the ‘offending’ spouse and the third person who are in solido liable (Articles 926, 481 f. GCC); the violation of Article 1386 GCC, which provides for the obligation to cohabitation, by the ‘offending’ spouse constitutes an unlawful act which can lead to a claim for damages by the ‘innocent’ spouse while the offence by the third person of the absolute right of the spouses to undisturbed marital cohabitation also constitutes an unlawful act, which allows the ‘innocent’ spouse to bring a claim for damages. However, damages can only be sought for certain expenses such as those for the divorce and for challenging the paternity of a child, eventually born out of the extramarital relation, for the maintenance already paid for said child, the investigation expenses for finding out about the breach of the marital duty; expenses to replace benefits given by the ‘offending’ spouse or other persons because of the marriage or expectations for benefits that the ‘innocent’ spouse would have obtained if the marriage had continued to exist cannot be sought. 49. See Ap. Georgiades, Law of Obligations, General Part, § 60, pp. 657–658, nos 14–15; id., in Ap. Georgiades & M. Stathopoulos (eds), Civil Code, 914. Nos 34 f. P. Filios, Law of Obligations, Special Part, Vol. II, § 165, pp. 307–310; P. Kornilakis, Law of Obligations, Special Part, I, § 84 3. I1, p. 484; M. Stathopoulos, Law of Obligations, General Part, § 15 IV, pp. 961–962, nos 35–36. 50. See A. Kritikos, Claim of the Spouse for Damages Against the Other Spouse and the Third Person Deriving from the Breach of the Marital Duty of Loyalty, Dedication to Alexandros Litzeropoulos, Vol. A, 535 f. 51. Ap. Georgiades, Tortious Liability of the Spouse and of the Third Person in Case of Violation of the Marital Duty of Loyalty, ChrID IE/2015, 321–329.

27

46–47

General Introduction

46. The prevailing view, though, in doctrine as well as in the jurisprudence is against such an approach. According to this view,52 the consequences of the violation of the marital duty of loyalty are exclusively regulated in the provisions of family law (divorce, deprivation of alimony, disinheritance, etc.). The same applies to the third person, the lover of the ‘offending’ spouse because of the relativity of the right to marital cohabitation. Only if the health, honour, and dignity of the ‘innocent’ spouse are also offended may the provisions of Article 914 f. GCC then apply; if not, mere pecuniary damage does not suffice, given that the breach of the marital duty of loyalty as such is not an unlawful act in the technical meaning of the term. III. Breach of a Relative Right 47. The breach of a relative right and in particular of an obligation not by the debtor but by a third party who is not tied by the contractual bond does not constitute, as a rule, an unlawful behaviour in the meaning of Article 914 GCC, as this third party is not obliged, as a principle, to respect the creditor’s relative right; thus, he cannot be liable on the basis of Article 914 GCC.53 Given, however, that the relative right is also a legal good that has a particular importance and function in the frame of the contemporary economy, an effort is being made for the acknowledgement of a claim for damages (mainly on the basis of Article 919 GCC) in certain at least cases of violation of relative rights.54

52. A. Kotzambasi, The Claim for Damages of the Spouse Against the Third Person in Case of Extramarital Relationships, KritE 1995, pp. 303 f. See also P. Kornilakis, Law of Obligations, Special Part, I, 2002, § 84 3. I 1β, p. 485. 53. Ap. Georgiades, Law of Obligations, General Part, § 60, p. 658, nos 16–17; P. Kornilakis, Law of Obligations, Special Part, I, 2002, § 84 3. 2, p. 486; M. Stathopoulos, Law of Obligations, General Part, § 15, pp., 961, 962, no. 36. See also P. Sourlas, Violation of a Contractual Obligation as a Cause for the Tortuous Liability Towards Third Parties, NoV 31 (1983) 449–457. 54. P. Kornilakis, Law of Obligations, Special Part, I, § 84 3. 2, pp. 486, 487.

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48–49

Part I. Liability for One’s Own Acts

Chapter 1. General Principles 48. The GCC, in its 39th Chapter (Articles 914–938) – a chapter devoted to ‘unlawful acts’ – the Greek equivalent to the concept of tort or delict,55 follows as a rule the principle of ‘no liability without fault’.56 The first article (Article 914) of the 39th Chapter of the GCC is a general clause on delictual liability.57 It stipulates one of the broadest sources of obligations: the act which is unlawful and due to fault (dolus or negligence), the civil delict. On the fulfilment of the other conditions of the provision, i.e., prejudice (injury, detriment, damage) and causal relation between this act and the prejudice, an obligation to compensate on the party responsible is created.58 The burden of proof of all facts for the claim to be substantiated has to be proven by the person who sustained the damage in accordance with the general procedural rule that the burden of proof lies on the plaintiff; so, the person who sustained the damage has to prove existence of all elements of Article 914 GCC (unlawfulness, fault of the tortfeasor, damage, causal link).59 49. The provision of Article 914 GCC does not contain a substantive rule of law regulating the notion of unlawful behaviour that obliges the tortfeasor to pay damages; it refers to the totality of the legislation for the characterization of the behaviour that causes damages as unlawful. This means that Article 914 GCC constitutes a blank norm and does not establish a general duty of ‘not causing damage to somebody else culpably’. Thus, the GCC does not adopt in its Article 914 the subjective theory for the notion of ‘unlawfulness’,60 which dictates that unlawful is any culpable behaviour that has caused damage without being justified by the law. On the 55. Ph. Christodoulou, in K.D. Kerameus &P.J. Kozyris (eds), Introduction to Greek Law (in English), 3rd edn., 2008, Ch. 6 IV, pp. 146–149. 56. See among an abundant relative bibliography Ap. Georgiades, in Ap. Georgiades & M. Stathopoulos (eds), Civil Code, Introductory Remarks to Arts 914–938 No. 21. 57. Article 914 GCC: ‘Whoever unlawfully and culpably causes damage to another is liable for damages.’ 58. M. Stathopoulos & A. Karampatzos, Contract Law in Greece (in English), p. 48, no. 39. 59. See, i.a., P. Kornilakis, Law of Obligations, Special Part, I, § 78 3. I4, pp. 458, 459; M. Stathopoulos, Law of Obligations, General Part, § 15 II, p. 942, no. 8; M. Stathopoulos & A. Karampatzos, Contract Law in Greece (in English), p. 49, no. 40 (a). 60. Supported by G. Michailidis-Nouaros, Liability from a Wrongful Act to the Person Who Has a Right on a Thing According to the New Civil Code (Article 914), AID 10, 16; P. Zepos, Law of Obligations: Special Part, § 30 II, 731.

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50–51

Part I, Ch. 1, General Principles

contrary, Article 914 GCC adopts the objective theory,61 according to which a behaviour is unlawful and gives rise to an obligation for damages, provided that such behaviour is: a) culpable, b) causes damage by offending a protected right or legal interest of the person who sustained the damage and c) is contrary to a rule of law that prohibits or imposes a certain behaviour.62 There is a tendency, however, nowadays in the jurisprudence to consider that the objectively unlawful character of an act also exists when the tortfeasor has acted negligently in violation of the general commands of care and prudence, regardless of whether his conduct constitutes a violation of a specific rule of law. 50. For an obligation for damages to be born according to Article 914 GCC, the following conditions have to be met:63 – – – –

an unlawful behaviour; fault on the part of the tortfeasor; prejudice (injury, detriment, damage); a causal link between the behaviour and the prejudice.

§1. UNLAWFULNESS AND FAULT I. Unlawfulness 51. It is questioned in Greek theory if liability is based on the conduct of the tortfeasor (i.e., the tortfeasor is liable because his conduct was contrary to a rule of law or to the commands of the legal order in general) or on the outcome of his conduct (i.e., the tortfeasor is liable because his conduct had as an outcome the violation of a right or of a legally protected interest of another person). According to the prevailing view,64 unlawfulness is judged from the outcome of the conduct, as what is important in order to establish civil liability is the conduct that leads to the violation

61. Supported by AP 50/2002 EllDni 43 (2002) 700 = NoV 50 (2002) 1701, 1702 (for a brief summary (in English) of the facts and the judgment of said decision as well as a short commentary thereof, see E. Dacoronia, Greece, in H. Koziol & B.C. Steininger, European Tort Law 2002 (2003), pp. 234–236, nos 10, 12–13, 16); 1500/2002 EllDni 44 (2003) 420 (see for a brief summary (in English) of the facts and the judgment of said decision as well as a short commentary thereof E. Dacoronia, in H. Koziol & B. Steininger, European Tort Law 2002 (2003), 234 nos 10–15); 87/2000 EllDni 41(2000) 967; 1286/1976 NoV 25 (1977) 906; 1249/1976 NoV 25 (1977) 739; Ap. Georgiades, in: Ap. Georgiades & M. Stathopoulos (eds), Civil Code, Art. 914 no. 20. 62. For the notion of strict liability see, i.a., Georgiades, supra (fn. 61) nos 21–38. 63. AP 1334/2003 EllDni 46 (2005) 92 = EpiDikIA 2004, 24 (for a brief summary (in English) of the facts and the judgments of said decision as well as a short commentary thereof, see E. Dacoronia, Greece, in H. Koziol & B.C. Steininger (eds), European Tort Law 2003 (2004), pp. 218–219, nos 21–23). 64. P. Filios, Law of Obligations, Special Part, Vol. II, § 164a, pp. 300–302; V. Vathrakokoilis, Detailed Interpretation: Jurisprudence of the Civil Code, Vol. A, 3rd ed., 1994, 914, p. 1206; EfAth 4351/ 2002 EllDni 44 (2003) 200; 3114/1977 NoV 26 (1978) 235, Thessaloniki Court of Appeal 326/1971 Armenopoulos 25, 515.

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Part I, Ch. 1, General Principles

52–53

of a right or of a legally protected interest. It has been argued, though,65 that unlawfulness should or can66 be judged from the behaviour of the tortfeasor. It must be said, however, that the two approaches, despite their differences, usually end up with the same practical results.67 52. Repeatedly in the last years, the Court of Cassation mentions in its judgments68 that it derives from the provision of Article 914 GCC that a person is liable for compensation if he has unlawfully69 and through his fault caused prejudice to another not only by offending a private right, such as ownership but also by offending a private interest. However, in order that there is a claim for compensation in the case that a private interest is offended, the provisions of the law that are violated should be, according to its phrasing or the purpose of the legislator, protective of the offended private interest or at least protective of that interest as well. Consequently, the violation of a provision that was exclusively set for the protection of the public interest does not give rise to a right for compensation, not even in the case that through the said provision the private interest is served indirectly, but the legislator did not intend that it is protected. The issue of whether a provision of law only protects the general interest or it also protects a private interest can be answered only after the interpretation of the law in question;70 no firm criteria exist for such an interpretation. 53. It is without doubt that the Greek AP adopts the ‘theory of the protective scope of the rule of law’,71 which, in order to restrict tort liability, stipulates that not 65. Ap. Georgiades, Law of Obligations, General Part, § 60, pp. 661–662, no. 27; G. Georgiades, in Georgiades SEAK I, Art. 914 no. 23. 66. M. Stathopoulos, Law of Obligations, General Part, § 15 IV, pp. 979, 980, no. 49. 67. Id., p. 983, no. 54. 68. See, i.a., AP 1787/2006, not published, 1788/2006 not published (for a brief summary (in English) of the facts and the judgments of the first decision as well as a short commentary thereof, see E. Dacoronia, Greece, in H. Koziol & B.C. Steininger (eds), European Tort Law 2006 (2007), pp. 243–245, nos 17–22); 175/2005 ChrID E/2005, 616. 508/2003 ChrID Γ/2003, 709, 710; 900/2003 EllDni 44 (2003) 1276 = EpiDikIA 2004, 40 = ArchN 55 (2004) 76, followed by a note of Ch. Nikolaidis (for a brief summary (in English) of the facts and the judgments of the said decisions as well as a short commentary thereof, see E. Dacoronia, Greece, in H. Koziol & B.C. Steininger (eds), European Tort Law 2005 (2006), pp. 308–309, nos 9–12 and European Tort Law 2003 (2004), pp. 213–215, nos 6–10). 69. A behaviour, which is justifiable according to the provisions of the GPC, and thus not unlawful, cannot be characterized as unlawful for the application of Arts 914 ff. GCC (see AP 1339/2008, published in NOMOS and for a brief summary (in English) of the facts and the judgments of said decision as well as a short commentary thereof, see E. Dacoronia, Greece, in H. Koziol & B.C. Steininger (eds), European Tort Law 2008 (2009), pp. 326–327, nos 9–11). 70. See relatively Ap. Georgiades, Law of Obligations, General Part, § 60, pp. 658–660, nos 18–21; id., in: Ap. Georgiades & M. Stathopoulos (eds), Civil Code (1982), 914, nos 50, 54; P. Filios, Law of Obligations, Special Part, Vol. II, § 165b, pp. 312–314; P. Kornilakis, Law of Obligations: Special Part I (2002), § 84 3 II, 487, with reference also to the relative German literature in fn. 12; M. Stathopoulos, Law of Obligations, General Part, § 15 IV, p. 962, no. 37. 71. About the ‘theory of the protective scope of the rule of law’ in Greece see Ap. Georgiades, Law of Obligations, General Part, § 10, pp. 152–163, no. 34; I. Deliyannis & P. Kornilakis, Law of Obligations, Special Part, Vol. III, 1992, § 353, 12; P. Filios, Law of Obligations, General Part, § 195, pp. 354–356; P. Kornilakis, Law of Obligations: Special Part I, § 89 8II, pp. 523 f.; M. Stathopoulos,

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54–55

Part I, Ch. 1, General Principles

any violation of a rule of law constitutes an unlawful act entailing an obligation for damages. According to this theory, there are rules that aim only at the protection of certain goods; in case of violation of the said rules resulting in an offence of goods, other than the ones which are to be protected, the person owing these goods is not entitled to invoke the rule and its violation and ask for damages based on tort liability. 54. Accordingly, the following provisions are examples of provisions which, according to the jurisprudence, are also protective of a private interest: – the provisions of Article 38 § 6 Law Decree (L.D.) 3881/1958 for the drilling of wells,72 so restitution of moral harm for the distress of the privation of water can be sought, according to the provisions on tort;73 – the provisions of the General Building Regulation, regulating the height of a building, its distances from the side and rear boundaries of the plots of land, etc., as it clearly derives from the provision of Article 24 paragraph 1 of the Greek Constitution for the protection of the natural and cultural environment, said provisions have not been enacted exclusively and not only for the protection of the general interest but also for the protection of the private interest of the owners of the adjacent immovable; thus a right for damages exists according to the provisions on tort (Article 914 GCC);74 – Article 230 § 1 of the General Regulation of Lavrio Harbour, which provides that animals are not allowed in swimming areas. This article aims at protecting not only the public interest but also the private interest of swimmers; thus, its violation constitutes a tort according to Article 914 GCC.75 II. Act Against Bonos Mores (Article 919 GCC) 55. Not only the unlawful behaviour but also the behaviour that contravenes bonos mores and intends to cause damage amounts to an independent delict that generates an obligation for damages and for payment of an amount for satisfaction of the moral damage caused according to Article 919 GCC, which stipulates that if someone causes damage to another by a wilful act contrary to bonos mores (i.e.,

72. 73. 74. 75.

32

in: Ap. Georgiades & M. Stathopoulos (eds), Civil Code (1979), 297–298 nos 60–65; M. Stathopoulos, Law of Obligations, General Part, § 8 IV, pp. 593–600, nos 132 ff. and § 15 IV, p. 960, 961, no. 34. As replaced by Art. 10 L.D. 1277/1972. AP 508/2003, ChrID Γ/2003, 709, 710 (for a brief summary (in English) of the facts and the judgments of said decision as well as a short commentary thereof, see E. Dacoronia, Greece, in H. Koziol & B.C. Steininger (eds), European Tort Law 2003 (2004), pp. 213–215, nos 6, 8, 10). AP 900/2003, supra (fn. 68). AP 175/2005 ChrID E/2005, 616 (for a brief summary (in English) of the facts and the judgments of said decision as well as a short commentary thereof, see E. Dacoronia, Greece, in H. Koziol & B.C. Steininger (eds), European Tort Law 2005 (2006), pp. 308–309, nos 9–12).

Part I, Ch. 1, General Principles

56–58

contrary to the ideas of a right and prudently thinking member of society at the time)76 he is bound to make reparation to the other for the damage thus caused. 56. Article 919 GCC complements Article 914 GCC, as it extends the delictual liability also to cases where there is no direct offence of a particular right or of a protected interest. The ideas of the average social man who, according to the general perception, has wisdom and moral thinking are used as a criterion for determining bonos mores.77 If a person’s act is related to a certain category of transactions, the perceptions that prevail to this particular category are taken into consideration, unless they are not compatible with social morality, as perceived by the abovementioned social man. In order to be judged whether, at the particular case of behaviour, there is an objective contrast to good morals (which is not excluded by the existence of a relevant right), the motives, the aim of the person acting, the kind of means used for achieving the aim, even if the said aim is a legitimate one, and all the other circumstances for the realization of the behaviour, positive or negative, are taken into consideration.78 57. The obligation to pay damages according to Article 919 GCC presupposes (Article 919 GCC in combination with Article 298 GCC) the existence of an objective causal relationship between the behaviour contrary to bonos mores and the damage eventually caused. Such a causal relationship exists when the behaviour, apart from being the necessary prerequisite for the damage, was in itself capable, under the circumstances, according to the usual course of things, to cause the damage, so that the damage can, in the particular case, be attributed, according to the commands of common experience, to the causal capacity of the behaviour contravening good morals; correspondingly, the said behaviour should constitute an adequate, sufficient cause for the damage.79 58. Even a financial institution, such as a bank, may be liable under Article 919 GCC when the institution’s organs have shown behaviour contrary to bonos mores which caused damage to a client. Such behaviour is shown, according to the jurisprudence,80 when: 76. For the notion of bonos mores in Art. 919 GCC and an analysis of the said article, see, i.a., Ap. Georgiades, in Ap. Georgiades & M. Stathopoulos (eds) Civil Code, Art. 919; I. Karakostas, Civil Code, Vol. 6, 2009, Art. 919; P. Papanikolaou, Notion and Function of Bonos Mores in Art. 919 GCC (Opinion), NoV 40 (1992) 509 f. = Studies on Civil Law, 2012, pp. 133 f. For an analysis of the influence of bonos mores on the validity of the contracts, see the monography of P. Papanikolaou, Juridical Acts Contrary to Public Policy, 2012. 77. AP (full bench) 10/1991 EllDni 33 (1992) 69. 78. AP (full bench) 398/1975 EllDni 17 (1976) 224. 79. AP 1019/2010, published in NOMOS. 80. Nafplio Court of Appeal 679/2000 ChrID A/2001, 227 ff., followed by a note of Ev. Nezeriti, ChrID A/2001, 229, for the relationship between the two general clauses, the one of Art. 919 GCC (behaviour contra bonos mores) and the other of Art. 281 GCC (abusive exercise of a right) (for a brief summary (in English) of the facts and the judgments of said decision as well as a short commentary thereof, see E. Dacoronia, Greece, in H. Koziol & B.C. Steininger (eds), European Tort Law 2001 (2002), pp. 284–287, nos 62, 64–69, 71).

33

59–59

Part I, Ch. 1, General Principles

(1) the financial institution exploiting its monopolistic or dominant position against its client undertakes, especially at a critical for the client economic period, measures which, in substance, aim at his annihilation, instead of offering him the usual to the banking transactions possible financial solutions, which will enable him to surpass the economic danger. These facilities must be substantial; that is, they must aim not only at the provisional prolongation of the client’s (usually being an enterprise) viability but also at his definitive survival; (2) the financial institution, exploiting its monopolistic or dominant position against its client, threatens the latter that it will terminate the loan agreement and ask for the whole amount to be paid. This behaviour obviously violates the commands of morality, taken into consideration the above-mentioned economic superiority of the financial institution. This threat does not constitute the threat of Article 150 GCC (i.e., a threat, which, under the circumstances, instils fear in a sane person and poses a serious and immediate danger to the life, physical integrity, liberty, honour or patrimony of such a person or of persons closely related to him, and which may render void the juridical act resulting from the declaration of will, which is based on this vice of consent), but constitutes an abusive exercise of the contractual rights, as, with this behaviour, the financial institution excessively binds the client and suppresses his economic, commercial and contractual freedom; (3) though the financial institution has repeatedly promised to the debtor, using deceiving means, that, due to the latter’s economic situation, it will reformulate the existing debt in a manner convenient to him, at the end the Bank does not live up to its promise; (4) the financial institution does not show all clients the same attitude, does not treat all of them in the same manner or does not exercise towards all of them the principle of proportionality. The principle of proportionality is violated when the financial institution takes hard measures for some of its clients and favourable for some others, or when it takes against the client some measures, which exceed the necessary ones, in order to satisfy its legal interests and which are not taken for other clients. 59. The Bank violates the commands of Article 919 of the GCC also when it gives incorrect information to another Bank in relation to the trustworthiness of a client; the Bank must have acted out of dolus eventualis (eventual wilful conduct); that is, it must have foreseen the unlawful result (damage of the other bank) as a likely (not necessary) consequence of its conduct (giving incorrect information), and in spite of this, it has accepted this result.81 81. Court of First Instance of Piraeus 1187/1999 ChrID A/2001, 322–325, which has adopted the legal opinion of Prof. Ap. Georgiades, published in ChrID A/2001, pp. 372–376, under the title ‘Liability of the Bank against third parties when exercising its credit policy – Contra bonos mores provocation of damage from a Bank by giving incorrect information to another in relation to the trustworthiness of a person’ (for a brief summary (in English) of the facts and the judgments of said decision as well as a short commentary thereof, see E. Dacoronia, Greece, in H. Koziol & B.C. Steininger (eds), European Tort Law 2001 (2002), pp. 284–287, nos 63, 70–71).

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60–62

§2. CONCEPT OF FAULT (WHICH BEHAVIOUR LEADS TO TORT LIABILITY?) 60. By ‘fault’ which justifies the imputation of blame to a person it is understood the blameworthy psychological attitude of a person towards his unlawful behaviour in view of the foreseen or foreseeable ‘unlawful’ result.82 Thus, fault relates to wrongfulness and damage; for fault to exist, the detrimental result should be foreseen or foreseeable, but the exact anticipation of its extent is not required.83 In order to establish tortuous liability, a plaintiff must invoke and prove that an unlawful and culpable act has taken place, regardless of the characterization of fault as dolus or negligence. It lies with the court to specifically define the degree of fault, after evaluating the evidence brought before it.84 61. Article 330 GCC on liability based on fault, which is applicable not only to contracts but also to torts, provides for two forms of culpability: intention and negligence, but it only defines negligence. In particular, according to Article 330 GCC, negligence exists when the tortfeasor has infringed the obligation generally required of every member of society to exercise the care which a reasonable man is capable of taking in the circle of his competence, regardless of whether there is a clear legal duty to do so or not. However, given that it has been widely accepted nowadays in the Greek jurisprudence that the objectively unlawful character of an act also exists when the tortfeasor has acted negligently in violation of the general commands of care and prudence (as described above), regardless of whether his conduct constitutes a violation of a specific rule of law, the negligent conduct constitutes, apart from a form of ‘fault’, an ‘unlawful’ conduct as well. This means that if the person concerned should have foreseen and avoided the violation, he acts unlawfully if he has not acted accordingly. Thus, the same term, ‘negligence’, is used for the ‘unlawful’ conduct and for ‘fault’, as ‘should’ and ‘is able’ coincide (‘double function of negligence’). It is steadily repeated, though, in Greek theory as well as in Greek jurisprudence that in Greek law, which is based on the fault principle, two distinct conditions – an objective (unlawfulness) and a subjective one (fault) – have to be met, even if they are fulfilled by the same act.85 62. According to Greek law, in order to establish whether or not the damaging party acted ‘negligently’, an objective standard is used as a yardstick for fault. The capabilities of the average, prudent and conscientious man are regarded as crucial.

82. See, i.a., Ap. Georgiades, Law of Obligations, General Part, § 23, p. 254, no. 4; P. Kornilakis, Law of Obligations: Special Part I, § 87 6 I 2 508 ff; St. Koumanis, in Georgiades SEAK I, Art. 330 no. 10; M. Stathopoulos & A. Karampatzos, Contract Law in Greece (in English), Part 1, Ch. 6, pp. 167–168, no. 251. 83. P. Kornilakis, § 87 6 I 2 509. 84. AP 1013/2005 NoV 54 (2006) 64 (for a brief summary (in English) of the facts and the judgments of said decision as well as a short commentary thereof, see E. Dacoronia, Greece, in H. Koziol & B.C. Steininger (eds), European Tort Law 2005 (2006), pp. 310–311, nos 16–18). 85. See more analytically, I. Karakostas, Law of Torts (2014) 140 f.; M. Stathopoulos & A. Karampatzos, Contract Law in Greece (in English), Part 1, Ch. 6, pp. 170–171, no. 256.

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63–64

Part I, Ch. 1, General Principles

The deviation of the conduct of the tortfeasor from those capabilities constitutes negligence, even if he himself was not able to behave in any other way.86 63. As regards intent (dolus), it is not required that the person who caused the damage acted with the exclusive aim to cause damage to the other (direct dolus), but the will for the caused damage suffices, i.e., that the damage was foreseen as an eventual consequence of the particular behaviour and, nevertheless, the tortfeasor did not abstain from the act or omission from which the damage derived (dolus eventualis). Given that, as a principle, liability according to the provisions of the GCC (Articles 330, 914, 198 etc.) exists even when there is only negligence, a serious effort has not been made until now in the field of civil law in order to tackle the difficult issue of defining dolus eventualis and of distinguishing it from the notion of negligence. An effort to give a definition of dolus eventualis in the field of civil law is found in some decisions of the Court of Cassation, all of them referring to the same case, the collapse of the Ricomex factory in the suburbs of Athens during the September 1999 earthquake and the consequent death of thirty-nine persons.87 It is accepted in said decisions that the concept of intention in civil law coincides with the one in penal law, as provided in Article 27 § 1 GPC, which acknowledges the following types of intention: (a) intent, when the offender aims to cause the criminal consequences or, though not aiming at such consequences, he foresees them as a necessary by-product of his intended act, and nevertheless he does not abstain from so acting; (b) eventual fraud when the offender foresees the criminal consequence as a possible by-product of his intended conduct and he ‘accepts’ them. As far as the definition of eventual fraud is concerned, the GPC followed the theory of ‘criminal acceptance’, according to which eventual fraud exists only if it is ascertained that: (a) the offender foresaw the consequences as possible by-product of his conduct and (b) he accepted them, regardless of whether the by-product he foresaw was wished for by him or not. In cases when the tortfeasor did not wish for the by-product, the causes that drove him to his action as well as the purposes he aimed at achieving are evaluated so as to be judged whether they constitute sufficient reasons justifying his acceptance. 64. Regarding the contractual exclusion of tortuous liability, Article 332 GCC,88 which stipulates that: ‘any agreement excluding or limiting beforehand liability resulting from wilful conduct or gross negligence is null. Any agreement excluding in advance a debtor’s liability even for slight negligence is also void, if the creditor is in the service of the debtor, or if the liability arises from the conducting of an enterprise for which prior concession by the competent authority was granted. The same also applies if the exclusion clause is included in a clause of the contract 86. See, i.a., P. Kornilakis, § 87 6 I 2, 510; M. Stathopoulos & A. Karampatzos, Contract Law in Greece (in English), Part 1, Ch. 6, pp. 169–170, no. 255. 87. AP (full bench) 8/2005 NoV 53 (2005) 1063 = EllDni 46 (2005) 694; 9/2005, published in NOMOS; 10/2005 ChrID E/2005, 504; 11/2005 ArchN 56 (2005) 456, cmt. by C. Nikolaidis; 12/2005 ChrID ΣT/2006, 40; 13/2005, published in NOMOS (for a brief summary (in English) of the facts and the judgments of the said decisions as well as a short commentary thereof, see E. Dacoronia, Greece, in H. Koziol & B.C. Steininger (eds), European Tort Law 2005 (2006), pp. 311–313, nos 19–24). 88. As replaced by Art. 2 § 1 L. 3043/2002.

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65–66

which did not constitute an object of an individual negotiation or if with the clause the debtor is discharged from his liability for the infringement of goods which derive from the personality and especially for the infringement of life, health, liberty or honour’89 refers to the exclusion of the debtor from his contractual liability. However, it is accepted in both Greek theory and jurisprudence90 that it also applies to cases of tortuous liability. Nonetheless, the exclusion clause cannot be invoked against third parties who have sustained damage.91 §3. DUTY OF CARE 65. Under the influence of the Greek literature, the broadening of the meaning of the term ‘unlawfully’ in Article 914 GCC, so as to include therein not only the violation of a prohibitory provision of the law but also the violation of the general duties of providence and care has been established in Greek jurisprudence.92 According to this broad interpretation of the term ‘unlawfully’, not only the act that violates a prohibitory provision of the law is unlawful, but also the act that violates the general duty of providence and care dictated by the principle of good faith. Therefore, whoever does not take the appropriate measures in order to avoid the risk of provoking a detriment to the goods of other persons may be liable to damages for the damage caused. 66. Thus, according to the Greek Court of Cassation, a behaviour is unlawful not only when it contravenes a provision of the law but also when it is contrary to the unwritten rules of prudence and diligence, to be expected from all members of the society, when acting. Such unwritten rules of behaviour are dictated either by explicit provisions of the GCC (Articles 281 and 288) or by the general spirit of the legislation and the need of each member of society to expect a minimum standard of care from other members of society (principle of good faith). This principle of

89. For an analysis of Art. 332 GCC (in English), see M. Stathopoulos & A. Karampatzos, Contract Law in Greece (in English), Part 1, Ch. 3, p. 115, nos 158 ff. 90. Ap. Georgiades, Law of Obligations, General Part, § 23, p. 274, no. 63 and § 60, p. 665, no. 43; St. Koumanis, in Georgiades SEAK I, Art. 332 no. 8; M. Stathopoulos, in Ap. Georgiades & M. Stathopoulos (eds), Civil Code, 332 no. 23; M. Stathopoulos, Law of Obligations, General Part, § 6 V, p. 414, no. 143; AP 1139/2006 ChrID ΣT/2006, 889; EfAth 10390/1979 NoV 28 (1980) 827. 91. Stathopoulos, Law of Obligations, General Part, supra (fn. 90); AP 1139/2006 ChrID ΣT/2006, 889. 92. See, indicatively (in English), the decisions reported by E. Dacoronia, Greece, in H. Koziol & B.C. Steininger (eds), European Tort Law 2010 (2011), pp. 258–260, nos 26–29; European Tort Law 2009 (2010), pp. 268–270, nos 5–7; European Tort Law 2002 (2003), pp. 234–236, nos 11, 14–16; European Tort Law 2001 (2002), pp. 271–272, nos 8–10. For more jurisprudence, see P. Kornilakis, Law of Obligations, Special Part I, § 84 IV 494 note 36. For a detailed analysis of the meaning of the violation of the general duties of providence and care, see Ap. Georgiades, Law of Obligations, General Part, § 60, p. 660, nos 22, 23; P. Kornilakis, Law of Obligations, Special Part I, § 84 3 IV 492–494; P. Kornilakis, Law of Obligations, Special Part, § 109 IV, pp. 354, 355; M. Stathopoulos, Law of Obligations, General Part, § 15 IV, 963–967, nos 39–43.

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67–69

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prudence and diligence obliges the members of society not to provoke damage to somebody else culpably;93 otherwise, they may be held liable to damages for the damage caused. 67. Especially in relation to car accidents, the Court of Cassation has repeatedly pointed out that abiding with the minimum requirements imposed by the Highway Code on the drivers of vehicles when they drive does not free such drivers from the obligation to go even beyond what is dictated by the said Code when this is necessary in order to avoid a detriment or in order to diminish the detrimental consequences of an act.94 68. In case of injury at work, however, according to Article 16 of L. 551/1915 and Article 66 of L. 3816/1958 ‘on the ratification of the Code of Private Maritime Law’, the person suffering disablement or, in case of his death, his relatives are entitled to claim compensation according to Articles 297, 298 and 914 GCC only when the accident can be attributed to malice on the part of either the employer or of his auxiliaries or when provisions on the safety of the employees are violated. The Court of Cassation95 has emphasized that a special provision is required; not complying with safety terms as stipulated by common knowledge and the general duties of providence and care required in everyday business life does not suffice. The accident must have been the result of non-compliance with safety regulations imposed by provisions which specially define the necessary safety terms and mention specific measures, ways and means for attaining safety for the employees. 69. The behaviour that can lead to an obligation for damages according to Article 914 GCC can be either a positive act or an omission. An omission constitutes an unlawful behaviour when there is a special legal obligation for the protection of the right or interest that has been inflicted and for the avoidance of the detrimental result. More precisely, in the Greek law of torts,96 an omission is unlawful when the omitting person has a duty to act. One has a duty to act: – when he is obliged by law; 93. For the general obligation of prudence and diligence, see, i.a., Ap. Georgiades, in: Ap. Georgiades & M. Stathopoulos (eds), Civil Code, Art. 914 no. 29; P. Kornilakis, Law of Obligations: Special Part I, § 84 3 II, 492–494; M. Stathopoulos, Law of Obligations, General Part, § 15 IV, pp. 975, 976, nos 44–45. 94. See, indicatively (in English), the decisions reported by E. Dacoronia, Greece, in H. Koziol & B.C. Steininger (eds), European Tort Law 2001 (2002) pp. 271–273, nos 8–13; European Tort Law 2002 (2003), pp. 234–236, nos 11, 14–16; European Tort Law 2005 (2006), pp. 306–308, nos 2–8). 95. AP 289/2004 (2004) EEN 2004, 565 (for a brief summary (in English) of the facts and the judgments of said decision as well as a short commentary thereof, see E. Dacoronia, Greece, in H. Koziol & B.C. Steininger (eds), European Tort Law 2004 (2005), pp. 330–331, nos 11–15). 96. For the omission as an unlawful behaviour, see, i.a., P. Baltakos, The Omission as a Presupposition for Tort Liability, ArchN 43 (1992) 449 ff.; I. Deliyannis & P. Kornilakis, Law of Obligations, Special Part III, § 348d; P. Filios, Law of Obligations, Special Part, Vol. II, § 163 A2, pp. 295, 296 and § 166, pp. 314–316; Ap. Georgiades, in: Ap. Georgiades & M. Stathopoulos (eds), Civil Code (1982), 914, nos 27–30; Ap. Georgiades, Law of Obligations, General Part, § 60, pp. 655, 662–663, nos 7, 28–33; P. Kornilakis, Law of Obligations, Special Part I, § 84 3 V, 494–496; M. Stathopoulos, Law of Obligations, General Part, § 15 IV 3, pp. 975, 976, nos 44, 45.

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70–72

– when he is obliged by contract; – when he is obliged by good faith according to the prevailing social understanding, especially when he himself has created a perilous situation. In such a case, he has the obligation to take all appropriate measures to prevent damage from happening to third persons.97 70. Accordingly, the Court of Cassation holds98 that the faulty omission of the tortfeasor gives rise to an obligation to pay damages when the said tortfeasor was obliged to act by law or by contract or by good faith, according to the prevailing social understanding and, more particularly, when he himself created a certain dangerous situation. Such an obligation for protection also exists when an enterprise has addressed to the public an invitation to visit or use a particular space of its premises; in this case, the enterprise should have taken all necessary and appropriate measures for the security of the visitors. §4. CAPACITY (INFANTS, MINORS) 71. In order to be held liable in tort according to the GCC, the tortfeasor must have been culpable, i.e., must have acted out of intent or negligence. Culpability presupposes that said person had: (a) the required free will when acting and (b) imputability, i.e., the capacity to perceive if his damaging behaviour was lawful or unlawful, ‘just’ or ‘unjust’, ‘good’ or ‘bad’. And this is because only under such circumstances the legal order can blame a person and hold him liable.99 72. (a) Lack of free will exists in cases of force majeure (vis major). Accordingly, force majeure (vis major), which includes basically the extreme cases of those events which cannot be averted by human powers, or, at least, of which it is more difficult to avert than other chance events,100 constitutes a ground that can be invoked by the defendant in order to avoid liability. The Greek jurisprudence follows the ‘objective theory’, according to which only facts ‘external’ to the debtor constitute ‘vis major’.101 According to the ‘subjective theory’, however, whether the

97. See, i.a., P. Kornilakis, Law of Obligations: Special Part I, § 84 3 V, 494, 495. 98. AP 5/2001, EllDni 42 (2001) 671 = NoV 50 (2002) 106 = ChrID A/2001, 310, 311 (for a brief summary (in English) of the facts and the judgments of said decision as well as a short commentary thereof, see E. Dacoronia, Greece, in H. Koziol & B.C. Steininger (eds), European Tort Law 2001 (2002), pp. 272–273, nos 11–13) and AP 50/2002, supra (fn. 61). See also AP 1454/2001, ChrID A/2001, 796, 797. 99. See, i.a., G. Georgiades, in Georgiades SEAK I, Art. 914 no. 39; I. Karakostas, 156 f; P. Kornilakis, Law of Obligations: Special Part (2002), § 87 6 II 1, p. 513; M. Stathopoulos, Law of Obligations, General Part, § 6 I, pp. 310, 311, no. 9. 100. For the notion of force majeure and the theories taught for the delimitation of the cases that fall under this category, see, i.a., M. Stathopoulos & A. Karampatzos, Contract Law in Greece (in English) Part 1, Ch. 6, pp. 171–173, no. 259; M. Stathopoulos, Law of Obligations, General Part, § 6 IV, pp. 370 ff., nos 97 ff. 101. See, i.a., Larissa Court of Appeal 25/2012, published in ISOKRATIS (database of the Athens Bar).

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73–74

Part I, Ch. 1, General Principles

fact is or not outside the field of the personal activity of the person is not taken into consideration for the characterization of a fact as ‘force majeure’.102 ‘Force majeure’ can be also invoked, according to one view, in order to justify the lack of causality while, according to another view, in order to justify the lack of unlawfulness.103 If the damage caused could have been predicted and avoided, there is no ‘vis major’, even if the damaging fact by itself is considered unpredictable and sudden. 73. (b) The capacity to be imputable in tort constitutes an obvious condition for the existence of a faulty behaviour. The legislator, considering, however, that, as a principle, the ordinary person has this capacity, does not stipulate when this capacity exists but only when it does not exist, i.e. it only explicitly dictates when a person lacks this capacity (Articles 915–917 GCC).104 Persons lacking capacity are those who lack lucidness (persons unconscious of their actions or while they were in a state of psychological or mental disturbance, which decisively diminished the efficiency of their judgment and will) or are at a very young age (under 10); a person who is above 10 years of age but below 14 is liable for the damage he has caused unless he has acted without the necessary mental maturity which would enable him to understand the unlawful character of his behaviour.105 His ability is examined on the basis of the particular facts of the case and depends on the degree of the spiritual and mental development of the particular minor as well as on the nature of the act.106 The standard of conduct expected of a child who is able to understand the unlawful character of his behaviour is the standard of an average child of his age.107 I. Cases of Non-imputability (Articles 915–918 GCC) A. Minors under 10 Years of Age and Persons Lacking Consciousness 74. The person who has caused damage to another without being conscious of his actions or while he was in a state of psychological or mental disturbance, which decisively diminished the efficiency of his judgment and will (Article 915 § 1 GCC, as amended with Article 20 of L. 2447/1996) as well as whoever has not yet completed the 10 years of age (Article 916 GCC) is not liable for the damage he has caused. 102. According to I. Karakostas, 148, the ‘subjective theory’ is more correct. 103. P. Kornilakis, § 87 6 II 1 513. 104. See Ap. Georgiades, in Georgiades & Stathopoulos, 915 no. 1; id., Law of Obligations, General Part, § 23, pp. 254–256, nos 7–11; G. Georgiades in Georgiades SEAK I, Art. 914 no. 40; P. Kornilakis, Law of Obligations: Special Part I, § 87 6 II 1, p. 513; M. Stathopoulos, Law of Obligations, § 6 I, pp. 310–319, nos 9–22. 105. I. Karakostas, Law of Torts, p. 160; P. Kornilakis, Law of Obligations, Special Part I, § 87 VI 514. 106. Larissa Court of Appeal 225/2007, published in NOMOS; I. Karakostas, Law of Torts, p. 161. See also AP 1410/2006 NoV 55 (2007) 335. 107. K. Christakakou-Fotiadi, Liability in Tort of Minors and Their Parents or Guardians, 2008, p. 44.

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Part I, Ch. 1, General Principles

75–78

75. A person can lack consciousness of his actions, e.g., in cases of extreme drunkenness, mental overstimulation or mental furore because of fear, anger, jealousy, etc.). A person is in a state of psychological or mental disturbance, which decisively diminished the efficiency of his judgment and will in cases of psychosis, psychopathy, neurosis or cretinism.108 76. If, at the time the damage was caused, the person who was unconscious of his actions or was in a state of psychological or mental disturbance, which resolutely diminished the efficiency of his judgment and will have put himself in such a condition through the use of alcoholic beverages or other similar means (e.g., drugs), he is liable for the damage, unless he had reached this condition without his fault (Article 915 § 2 GCC). The burden of the proof in this latter case, i.e., that the person who caused the damage had reached the above-mentioned condition without his fault, lies on him.109 B. Minors Older Than 10 Years of Age and Deaf Mutes 77. A person who is older than 10 years of age but below 14 is liable for the damage he has caused unless he has acted without the necessary mental maturity which would enable him to understand the unlawful character of his behaviour. The same rule applies to deaf-mute people (Article 917 GCC). If the capacity to understand the unlawful character of the behaviour exists, liability of said persons in tort exists even if they cannot understand the particular damaging consequences of their acts or the legal consequence of the unlawfulness, i.e., mainly the liability to pay damages.110 78. Accordingly, the Polykastro111 Magistrate’s Court112 found that a deaf-mute minor who entered with another minor friend of his uncle’s house from the kitchen window violently repelled his 11-year-old cousin, who was alone at home and stole an amount of money, which was the price of recently sold sheep and of the existence of which he was aware, because of his kinship with the victims, had the ability to understand the unlawful character of his act, i.e., he knew that his behaviour was unlawful, irrespectively of whether he had the ability or not to behave according to this diagnose. Thus, according to the Court, the deaf-mute minor had not the right to invoke Article 917 sentence b GCC and be exempted from liability, as he acted with discretion. The Court was led to this judgment from the whole behaviour of the deaf-mute minor.113 108. 109. 110. 111. 112. 113.

P. Kornilakis, Law of Obligations: Special Part I, § 87 6 II 1, p. 514. Id., pp. 513, 514. Id. (fn. 108). Polykastro is a city in Greece, at Kilkis, Central Macedonia, north from Thessaloniki. Polykastro Magistrate’s Court 5/1989 Arm 1989, 969. The Court arrived to its judgment based on the facts that the deaf-mute minor knew the existence of the money and he mentioned it to his friend, as he also mentioned the fact that there was only

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79–80

Part I, Ch. 1, General Principles

79. It has to be mentioned here that the GCC takes into consideration from the physical disability only the situation of deaf-mute people and provides, as mentioned above, in Article 917 sentence b, that deaf-mute people are liable for the damage they have caused unless they have acted without being able to understand the unlawful character of their behaviour. The notion of deaf-mute is the same as in Penal Law; deaf-mute is the person who has been deprived either from birth or at the first stage of infancy the capacity of hearing and, accordingly, he has not been able to develop the capacity of speech. The loss of these two capacities or of one of them at a later stage does not suffice in order to qualify a person as deaf-mute. As a consequence, persons who are only deaf or only mute or who became deaf-mute after infancy are in principle (unless Article 915 GCC can apply) fully capable of being imputed in tort and thus liable to pay damages. 80. This explicit assimilation of deaf-mute people to minors of 10–14 years old regarding imputability is based on the previous thinking that whoever had the misfortune to be deprived very early of the two most important means of communication, i.e., of the hearing and of the speech, usually shows a handicap in his mental development, so as to be considered as having a limited capacity to what regards imputability in tort. This approach, however, is outdated. Today deaf-mute people with the help of special teaching systems, which are constantly being improved, become mentally mature, and they can communicate with the environment in such a degree that they are not mentally inferior to other people.114 Thus, it has been argued that the de lege ferenda proposal of the penologists that deaf-mute people should be imputable should be also adopted in the civil law. We have to admit, however, that though more than thirty years have elapsed since the said proposal, the Greek legislator has not acted accordingly and has not amended Article 917 GCC.

his underage cousin in the house, he secretly entered the plaintiffs’ house from the kitchen window, whereas if he believed that his act was lawful, he would have used the main entrance, as he did previously every time he visited them. 114. Ap. Georgiades, in Georgiades & Stathopoulos, Civil Code, Art. 917 no. 8; G. Georgiades, in Georgiades SEAK I, Art. 917 no. 11.

42

81–83

Chapter 2. Specific Cases of Liability (Are All Tortfeasors Subject to the Same Rules?) §1. LIABILITY OF PROFESSIONALS 81. Though the EU has not yet issued a directive regarding the liability of persons rendering services, the Greek legislator has made a further step, introducing with L. 2251/1994 not only provisions regarding the liability of producers but also the liability of persons rendering services (Article 8). Said article has been drafted in conformity with the draft of the EU Directive on liability of persons rendering services (CONSOM 20/ECO 86/6378/92, 12.5.92). Article 8 L. 2251/1994 provides for a hybrid strict liability, i.e., fault is required, but there is a reverse of the burden of proof.115 I. In General (Is There a Higher Standard of Care?) 82. Article 330 sentence b GCC gives the definition of negligence, stipulating that ‘negligence exists when the diligence required in transactions is not shown’. According to the prevailing in the Greek civil law view, the required diligence is not the one required from any man but from the prudent and diligent average representative of the ‘circle’ (to what concerns profession, education, environment, age, etc.) to which the tortfeasor belongs. This objective model and standard of behaviour is the criterion for the characterization of a person as negligent without taking into consideration whether the particular person was or not in a position to show the diligence the above model would show under the same circumstances or if said person did what he could do to avoid the provocation of the damage.116 Accordingly, professionals are judged according to the prudent average representative of their particular profession. II. Medical Practitioners 83. Following the above, liability of medical practitioners is judged using as criterion the behaviour of the average representative of their circle.117 Thus, in cases of professional liability, the negligent behaviour of a doctor is found after having mainly taken into consideration the rules of proper conduct imposed by the Code for the Exercise of the Medical Profession.118 According to the jurisprudence of 115. Ap. Georgiades, Law of Obligations, General Part, § 63, p. 723, no. 3. 116. Ap. Georgiades, Law of Obligations, General Part, § 23, p. 259, no. 21; I. Karakostas, Law of Torts, p. 133; P. Kornilakis, Law of Obligations: Special Part I, § 87 6 I 3, p. 510; S. Koumanis, in Georgiades SEAK I, Art. 330 no. 18; M. Stathopoulos, in Georgiades & Stathopoulos, Civil Code, 330 no. 33; id., Law of Obligations, General Part, § 6 III, pp. 287–288, no. 61. 117. AP 424/2012 ChrID IB/2012, 587; 181/2011 ChrID IB/2012, 664. See also I. Karakostas, Law of Torts, p. 133. 118. See, i.a., I. Karakostas, Law of Torts, p. 133; I. Karakostas, Note under EfAth 4495/2002 DEE 10 (2004), 206.

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84–85

Part I, Ch. 2, Specific Cases of Liability

both civil and administrative courts, the doctor must provide the required medical assistance not only according to the above-mentioned Article 330 GCC but, moreover, by showing diligence that goes beyond the one required in the said article. 84. In particular, according to the Greek jurisprudence,119 it derives from Article 24 of the ‘Code for the Exercise of the Medical Profession’120 in combination with Articles 330 and 914 GCC that the doctor is liable for damages if he acts out of intent or negligence; such a negligent behaviour exists, if the doctor acted or omitted to act in violation of the commands of the medical science, while he bears no liability if he acted lege artis. More specifically, the doctor bears no liability if he acted as a prudent and diligent doctor would have acted, under the same conditions and circumstances and with the same means at his disposal. This approach of the jurisprudence reflects the prevailing objective theory about negligence, i.e., that the behaviour the tortfeasor himself could have shown is not taken as a measure for comparison but the one the typical representative of a doctor of his specialization could have shown. The ‘great performance’ or the ‘special capacities’ of the particular doctor are not to be taken into consideration. What is only to be taken into consideration is if the said doctor objectively, because of his further (theoretical and practical) specialization, no more belongs to the wider circle of doctors but to a smaller circle, i.e., the fact that the doctor is a specialist is particularly taken into consideration, as the patient usually addresses him exactly because of this specialization of his which usually also entails the payment to the doctor of a higher remuneration.121 If the patient has addressed the doctor not because of his ‘exceptional personal capacities’ but because of his special knowledge which can be objectively assessed (e.g., the doctor has titles of special training) or if the doctor himself bases his scientific, professional and economic success on this special knowledge, then, the law on civil liability has no other choice but to try to even further specialize the objective criterion of diligence. III. Legal Practitioners 85. As regards legal practitioners, of special interest is decision 18/1999 of the Court of Cassation (full bench),122 as it deals with the liability of lawyers. The Court 119. Larissa Multi-Member Court of First Instance 191/2012 TPCL 5 (2012) 723, followed by a note of K. Fountedaki = NoV 60 (2012) 1416. About the decision and the note of K. Fountedaki (in English), see E. Dacoronia, Greece, in K. Oliphant & B.C. Steininger (eds), European Tort Law 2012 (2013), pp. 317–323, nos 34–50. 120. Obligatory Law 1565/1939 which remained in force after the introduction of the GCC, according to Art. 47 of the Introductory Law GCC. See also Art. 2 of the New Code of Medical Ethics (L. 3418/2005). 121. Athens Court of Appeal 4964/2008, NoV 57, 523; 7092/2001 published in ISOKRATIS; Larissa Court of Appeal 554/2009 published in ISOKRATIS; I. Karakostas, Law of Torts, p. 134. 122. AP 18/1999 NoV 48 (2000) 465–469 = EllDni 40 (1999) 1290 = DEE 5 (1999), 1172 = EEN 2000, 230. For a brief summary of the facts (in English), see E. Dacoronia, in H. Koziol & B.C. Steininger (eds), European Tort Law 2001 (2002), p. 289, no. 82. The said decision has become the object of a vivid criticism for the view of its majority in an article by G. Arnokouros, DEE 7 (2001), pp. 467–474. The said author adopts the view of the minority of the Court.

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86–87

of Cassation with this decision and with a large minority (nine dissenting members) has decided that the special nature of the profession of lawyers, on the one hand, and the scope of L. 2251/1994 for the protection of the consumer, which has incorporated the Directive 85/374/EEC, on the other, make it that the lawyers are exempted from the scope of said law. Hence lawyers do not fall under the category of persons (architects, doctors, etc.) who are liable towards their clients according to Article 8 of the above law123 but continue to be liable according to Article 73 of the Introductory Law Greek Code of Civil Procedure (GCCP) which provides for an action for a mistrial against lawyers, notaries, arbitrators, court secretaries and bailiffs. 86. It has been held124 that L. 2251/1994 has not abolished Article 73 of the Introductory Law GCCP which provides for an action for wrongful treatment against lawyers, notaries, arbitrators, court secretaries and bailiffs and which stipulates that a relevant action is only permitted if it is based on intent or gross negligence and the plaintiff sustained damage from the acts or omissions of said persons (Article 73 § 4). According to § 5 of said article, the court action is not allowed if six months have elapsed from the act or omission invoked. The Greek Court of Cassation (in full bench) has held that the six months limitation period starts running not from the moment of the act or omission but from the moment the person who gave the mandate took knowledge of the damaging behaviour; in this way Article 73 § 5 does not contravene Article 20 § 1 of the Greek Constitution on the right to legal protection which it would do if the provision stood as it reads (six months from the act or omission).125 It has been also held that Article 73 of the Introductory Law GCCP is the only basis for a legal action against said persons; a claim based on contractual liability (Article 713 GCC regulating the mandate) or on tortuous liability (Article 914 GCC) or on above-mentioned Article 8 of L. 2251/1994 is not possible.126 87. Article 73 of the Introductory Law GCCP has been tacitly amended, to what regards lawyers, by Article 161 § 1 of the ‘Code for Lawyers’127 which stipulates that claims against lawyers who, by their act or omission, unlawfully caused damage out of intent or gross negligence to their clients are time-barred three years after

123. The said decision has become the object of a vivid criticism for the view of its majority in an article by G. Arnokouros, DEE 7 (2001), pp. 467–474. The said author adopts the view of the minority of the Court according to which lawyers should not be exempted, as, while exercising their professional activity, they offer services in an independent way; this view has already been expressed by Ast. Georgiades, The Liability of the Person Rendering Services, Vol. dedicated to A. KiantouPambouki (1998), pp. 154, 155. 124. Thessaloniki Multi-Member Court of First Instance 10725/1997, Digesta 2000, 118. 125. AP 20/2000 (full bench), AP 1057/2009, both published in NOMOS; AP 400/2001 EllDni 42 (2001) 848 = NoV 49 (2001) 1501, which held that the six months’ limitation period starting from the act or omission is contrary not only to the Greek Constitution but also to Art. 6 § 1 of the European Convention on Human Rights. 126. See AP 1057/2009, supra (fn. 125). 127. L. 4194/2013 (FEK A’, 208).

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88–89

Part I, Ch. 2, Specific Cases of Liability

the act or omission invoked by the plaintiff.128 The provision of the ‘Code for Lawyers’, though enacted after the settled position of the jurisprudence, according to which the limitation period should start running not from the moment of the act or omission but from the moment the person who gave the mandate took knowledge of the damaging behaviour, extends the prescription period from six months to three years but continues to have as starting point the moment of the act or omission. It has been said129 that it is possible that it has been considered by the drafters of the Code that the extension of the limitation period from six months to three years counterbalances the element of knowledge and fulfils, in this way, the requirements of the principle of proportionality, a supposition, though, that is not confirmed by the preamble of the Code. It must be noted, however, that there is no decision of the Courts yet holding that the three-year limitation period starts running not from the moment of the act or omission but from the moment the person who gave the mandate took knowledge of the damaging behaviour. IV. Builders and Architects and Others (Tax Advisers, Accountants, Banks, Etc.) 88. Builders and Architects and other persons providing services are liable according to Article 8 L. 2251/1994 which, as mentioned, provides for a hybrid strict liability, i.e., fault is required, but there is a reverse of the burden of proof.130 Civil engineers should comply with the generally accepted technical rules and standards of building-construction and should not allow a defective construction, which lacks stability and resistance, thus endangering life and health; they are under a special legal duty to take particular care to protect the goods exposed to danger, by taking preventive measures and by repairing the defective building.131 §2. LIABILITY OF PUBLIC AUTHORITIES (CONDITIONS; ALSO AGAINST THEIR ORGANS? IS COMPENSATION IN KIND POSSIBLE?) 89. Since the introduction of the GCC, the Greek legislator has provided for State liability and liability of State servants or agencies, by including three articles (Articles 104–106) in the Introductory Law of the GCC.132 A distinction is drawn between acts or omissions of a public character and those of a private character. In particular, Article 104 provides that, for acts or omissions of State organs, which 128. 129. 130. 131. 132.

46

See also Fl. Triantafyllou-Albanidou, p. 982 fn. 22. Id., p. 986. Ap. Georgiades, Law of Obligations, General Part, § 63, p. 723, no. 3. See AP (in full bench) 8/2005, 9/2005, 10/2005, 11/2005, 12/2005, 13/2005, supra (fn. 87). Mandatory L. 2783/1941. For a very short analysis of Arts. 104–106 of the Introductory Law of the GCC, see M. Margaritis & A. Margariti, in M. Margaritis & A. Margariti, Compendium Interpretation of the GCC and of the Introductory Law of the GCC, 2016, pp. 1456, 1457. For an extensive analysis (in English), see E. Dacoronia, The Liability of Public Authorities in Greece, in K. Oliphant (ed.), The Liability of Public Authorities in Comparative Respect, 2016, pp. 195–224.

Part I, Ch. 2, Specific Cases of Liability

90–92

refer to private law legal relations or are related to its private property, the State is liable according to the provisions of the GCC concerning legal persons, i.e., according to Articles 61 ff. GCC.133 90. Article 105 of the Introductory Law GCC provides that ‘the State is liable to pay damages for unlawful acts or omissions of its organs during the exercise of the public authority entrusted to them, unless the act or omission breached a provision in favour of the general interest. The culpable organ is jointly liable with the State, with the reservation of the special provisions for the liability of Ministers’. 91. The second sentence of Article 105, which stipulates that the culpable organ is also jointly liable, has been tacitly amended by the Public Civil Servants’ Codes, which have been enacted subsequently and which narrow the ambit of Article 105 sentence b of the Introductory Law of the GCC. Said Codes provide (Article 57 L. 1811/1951, Article 85 § 1 P.D. 611/1977, Article 38 § 1 L. 2683/1999 and Article 38 § 1 L. 3528/2007) that there is no liability of civil servants towards the third party for their culpable acts or omissions. According to the above-mentioned provisions, the civil servant is only liable towards the State for damages the latter paid to third parties for unlawful acts or omissions of the said civil servant at the execution of his duties and only if said acts or omissions are due to malus dolus or gross negligence. It derives from the above that Article 105 sentence b of the Introductory Law GCC only applies to those civil officials who do not fall under the provisions of the Public Civil Servants’ Code (e.g., members of the academic staff of Universities). 92. According to Article 106 of the Introductory Law GCC, the provision of Articles 104 and 105 also applies to the liability of municipalities, communities or other legal persons of public law for actions or omissions of organs in their services. It has to be noted here that, as also previously mentioned, after L. 3852/2010, which implemented the ‘Kallikratis’ programme, Greece is administratively divided into municipalities and districts only, and communities no longer exist. However, the wording of Article 106 of the Introductory Law GCC has not been amended accordingly. Municipalities and districts are, according to Articles 1 and 3 L. 3852/ 2010, public law legal persons which comprise the so-called local government agencies of first and second degree respectively to which Article 106 of the Introductory Law GCC also applies.

133. Article 70 GCC on juridical acts of legal persons stipulates that juridical acts entered into within the bounds of their powers by the organ administrating the legal person are binding on the legal person. Art. 71 GCC on the liability of legal persons provides that the legal person is liable for acts or omissions of its legal representatives, as long as the act or omission has taken place in the course of the performance of the duties entrusted to them and gives rise to an obligation for damages. The culpable legal representative is also jointly and severally liable.

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93–95

Part I, Ch. 2, Specific Cases of Liability

§3. ABUSE OF RIGHTS (I.E., INJURY CAUSED IN THE EXERCISE OF LEGAL RIGHTS; ABUSE OF LEGAL PROCEDURE) 93. Unlike the French, and like the German, Austrian and Swiss Civil Codes, the GCC has expressly codified the doctrine of abuse of rights, originally developed by the French courts in the middle of the nineteenth century. Article 281 GCC provides that ‘The exercise of a right is prohibited when it manifestly exceeds the limits dictated by good faith, or good morals, or the social or economic purpose of the right.’134 A provision parallel to Article 281 GCC and applicable apparently to matters of public law is found in Article 25 § 3 of the Greek Constitution of 1975 which also stipulates that the abusive exercise of a right is not allowed. 94. In order to be abusive, and thus prohibited under Article 281 GCC, the right must ‘manifestly’ exceed the limits dictated by good faith, or good morals, or the social or economic purpose for which the right was granted in the first place. These limits are determined judicially on the basis of objective considerations. Personal motives, although material, are not determinative. According to established jurisprudence, all private rights are subject to the limitation of Article 281 GCC, including rights deriving from juridical acts or from rules of public order, and extending into areas outside the civil law. Article 281 GCC is a rule of public order that cannot be derogated from by contrary agreement. It is disputed whether the abusive exercise of a right may be taken into account ex officio by the court, but it may be raised by the affected party at any stage of the proceedings, provided the supporting facts were pleaded timeously. If the abusive exercise of a right took the form of a juridical act, the act will be void. Otherwise, it may give rise to an action for injunction and potentially to a claim for compensation. 95. As stated in the jurisprudence135 and confirmed by the legal scholars,136 it derives from the combination of Articles 914 and 919 GCC with Article 281 GCC that if someone causes damage to another by a culpable unlawful act which consists of the exercise of his rights in a way flagrantly exceeding the limits dictated by bona

134. For an analysis of Art 281 GCC, see, i.a., Ap. Georgiades, in Ap. Georgiades & M. Stathopoulos, Civil Code, Vol. IB, 2nd edn., Art. 281; N. Georgiades in Georgiades SEAK I, Art. 281. 135. See, i.a., AP (full bench) 16/2006 NoV 54 (2006) 1716; AP 465/1998 EllDni 39 (1998) 1551; 99/2000 EllDni 41 (2000) 1016; 5/2001, supra, fn. 98); 220/2004 ChrID Δ/2004, 602, followed by a note of G. Iatrou (for a brief summary (in English) of the facts and the judgments of said decision as well as a short commentary thereof, see E. Dacoronia, Greece, in H. Koziol & B.C. Steininger (eds), European Tort Law 2004 (2005), pp. 329–330, nos 8–10); 1933/2009 published in ISOKRATIS (for a brief summary (in English) of the facts and the judgments of said decision as well as a short commentary thereof, see E. Dacoronia, Greece, in H. Koziol & B.C. Steininger (eds), European Tort Law 2009 (2010), pp. 270–273, nos 8, 10, 12–13); 1935/2009 published in ISOKRATIS; 1946/2009, published in ISOKRATIS (for a brief summary (in English) of the facts and the judgments of said decision as well as a short commentary thereof, see E. Dacoronia, Greece, in H. Koziol & B.C. Steininger (eds), European Tort Law 2009 (2010), pp. 270–273, nos 9, 11–13). 136. See Ap. Georgiades, General Principles of Civil Law, § 23, p. 313, no. 33, fn. 57.

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96–98

fides (i.e., the straightforwardness and fairness in transactions) and the socialeconomic purpose for which the right was granted or if he causes damage by a wilful act contrary to bonos mores (i.e., contravening the ideas of a right and prudently thinking member of society at the time), he is bound to make reparation to the other for the damage thus caused. §4. INJURY TO REPUTATION AND PRIVACY (OF NATURAL AND JURISTIC PERSONS) 96. The protection of the personality according to Article 57 GCC encompasses all goods that are related to the human being such as health (public and personal), honour, private life and the sphere of secrecy, all elements by which a person is distinguished in the outside world (name, image), the physical and emotional integrity. The GCC grants a general action for the protection of one’s personality against any ‘unlawful’ intrusion, invasion or infringement. The action is available even against a defendant who is not, or is incapable of being, at fault, and may result in a prohibitory or mandatory injunction. If at fault, the defendant may be forced to pay monetary compensation or make other reparation for moral damage (Article 59 GCC) and may be sued under general tort law for patrimonial damage. A similar action is available for the protection of the memory of a deceased person. 97. Special protection is provided for a person’s name by Article 58 GCC, which is interpreted so as to extend to juridical persons as well. It is well established in the Greek theory and jurisprudence that also a legal entity can sustain moral harm, when aspects of the personality that also suit a legal person, such as the fame, reputation, commercial credibility, or the name of the legal entity is offended.137 98. The GCC includes a special provision on defamatory rumours in the chapter on torts, the provision of Article 920 GCC which stipulates that: ‘Whoever, knowing or culpably ignoring, supports or spreads untrue news which imperil the trustworthiness, job or future of another person, is bound to pay damages.’138 This provision regulates a special kind of tort in order to protect the economic status of a person from damage that can be caused to such person when untrue news which imperil the trustworthiness, job or future is supported or spread. Article 914 GCC in combination with Articles 57–60 GCC (which, as already mentioned, protect the culpable violation of the absolute right to the personality) could provide the same protection, but the legislator considered it necessary to have a special provision, in order to avoid discussions on whether the goods protected in Article 920 GCC, i.e., the trustworthiness, job or future of a person are expressions of the personality and

137. For more details, see infra (Part VI, Ch. 4§ 2 IX, p. 117). 138. For an analysis of Art 920 GCC, see G. Georgiades, in Georgiades SEAK I, Art. 920; I. Karakostas, Law of Torts, § 8, pp. 282 ff.; P. Kornilakis, Law of Obligations: Special Part I, § 90 1, pp. 527 ff.; A. Vosinakis, in Georgiades & Stathopoulos, Civil Code, Art. 920.

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99–101

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thus protected by Article 914 GCC in combination with Articles 57–60 GCC.139 When the way of supporting or spreading the untrue news can qualify as a penal act under Articles 361 f. GPC (insult, slanderous or simple defamation, etc.), it is obvious that damages can be sought on the basis of Article 914 GCC in combination with the penal provision that has been violated.140 99. By ‘untrue news’ is meant information about the present or the past that can be the object of proof and which does not respond – at least at their basic points – to reality or is presented distorted. This news must refer to circumstances, relations or situations of a person related to such person’s general economic and social status (e.g., company A is in a very bad financial situation and will shortly be bankrupt; B is untrustworthy, etc.). On the contrary, ‘evaluating judgments’ (e.g., C is not a good scientist) do not fall under Article 920 GCC, as they do not constitute ‘news’ in the meaning of this article.141 §5. INTERFERENCE BY A THIRD PERSON WITH CONTRACTUAL RELATIONS 100. The interference by a third person with a contractual relation, as a rule, does not constitute an unlawful act, as, according to the principle of privity of contract, which is one of the fundamental principles in the Greek Civil Law, a third person is not in principle obliged to respect the right of the creditor and, thus, he may not be held liable according to Article 914 GCC.142 However, liability can be generated in case of violation of a contractual relation by a third person if the behaviour of such third person is contrary to good morals (Article 919 GCC). 101. Article 919 GCC applies: (a) when the third person negatively affects the interests of the creditor by inducing the debtor, contrary to the demands of good morals, to violate his contractual relation, e.g., when A convinces B to sell and transfer to him the ownership of a thing, though A knows that B had promised to sell it to C, having as an exclusive aim to deprive C of obtaining the thing; in such a case, the third party may be held liable though he himself has not directly infringed the right deriving from the contract;143 or (b) when the third person himself directly infringes the right deriving from the contract by impeding the fulfilment of the obligation in favour of the creditor, as, e.g., when A presents himself as the creditor and collects the debt by the debtor B, who, being in good faith, is absolved (on the basis of Articles 426, 461, 889 or 936 GCC), depriving thus the actual creditor, C, from his claim against B.144 139. See, i.a., Ap. Georgiades, Law of Obligations, General Part, § 62, p. 689, no. 20; G. Georgiades, in Georgiades SEAK I, Art. 920 no. 2; P. Kornilakis, Law of Obligations: Special Part I, § 90 1 I, 527; A. Vosinakis, in Georgiades & Stathopoulos, Civil Code, Art. 920 no. 1. 140. See Georgiades, supra (fn. 139); G. Georgiades, in Georgiades SEAK I, Art. 920, nos 23–27; Kornilakis, supra (fn. 139); A. Vosinakis, in Georgiades & Stathopoulos, Civil Code, 920 no. 9. 141. P. Kornilakis, Law of Obligations: Special Part I, § 90 1 III, 530, 531. 142. See, i.a., id., § 84 3, 486, with more references in fn. 10. 143. See, i.a., P. Kornilakis, Law of Obligations: Special Part I, § 85 4, 499. 144. Id., § 85 4, 500.

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102–103

Part II. Liability for Acts of Others

Chapter 1. Vicarious Liability §1. EMPLOYEE/EMPLOYER 102. Article 922 GCC, according to which ‘The master or the person who appoints another person to perform a function is liable towards a third party for the damage unlawfully caused to the latter by the servant or this other person in the execution of his task’ introduces an exception to the rule that delictual liability is based on one’s own fault, by holding the master or a person who has assigned to another the task of performing a service, strictly liable for the prejudice caused unlawfully to a third party by the servant or the person assigned while performing his service.145 According to this provision, in order for a person to be characterized as someone’s auxiliary, a relationship of dependence should exist between them, so that the auxiliary should follow the commands or instructions or accept the control or supervision during the execution of the duty assigned.146 103. It has been established by the Greek jurisprudence since long147 that a contract between the master and the servant or the person assigned while performing his service is not necessary in order to establish liability according to Article 922 GCC. Vicarious liability can be based on a purely factual or friendly or parental relationship, or it can take place occasionally for one only particular act. So it is of no importance how the auxiliary person has been employed or if his employment has been made by another person and not by the principal. It suffices that the former acted under the guidance and orders of the principal on how he must fulfil his duties.148 145. See relatively Ap. Georgiades, Law of Obligations, General Part, § 62, pp. 691–698, nos 27–42; Kornilakis, supra (fn. 143), § 91 2, 533; M. Stathopoulos, Law of Obligations, General Part, § 7 III, pp. 428–482, nos 17–87. See also (in English) E. Dacoronia, Mass Torts: a Greek approach, RHDI 47 (1994), p. 88. For an analysis of Art 922 GCC, see G. Georgiades, in Georgiades SEAK I, Art. 920; M. Stathopoulos, in Georgiades & Stathopoulos, Civil Code, 922. 146. See relatively M. Stathopoulos, Law of Obligations, General Part, § 7 III, pp. 451–454, no. 46; AP 280/2009 DEE 15 (2009) 1396 f. 147. For the relevant jurisprudence, see P. Kornilakis, Law of Obligations: Special Part (2002), § 91 2 II 1, 537, fn. 13. 148. AP 121/2002 ChrID B/2002, 322, 323 (for a brief summary (in English) of the facts and the judgments of said decision as well as a short commentary thereof, see E. Dacoronia, Greece, in H. Koziol & B.C. Steininger (eds), European Tort Law 2002 (2003), pp. 237–238, nos 21–24).

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104–106

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104. On the issue of whether the abuse on the part of the auxiliary performer precludes the vicarious liability of the principal, the prevailing view in the jurisprudence149 dictates that the principal is vicariously liable even if the servant or the person assigned has acted in abuse of his service, i.e., when the unlawful act has taken place in excess of the limits of the servant’s duties and contrary to the guidance and orders of the principal, provided that between the unlawful act and the business to be brought to an end there exists an internal relationship. It has been argued, however, that the principal is not liable if the prejudiced person knew (or ought to have known) that the servant or the person assigned has acted in abuse of his service, and this either on the ground of lack of a causal link between the act and the service or on the ground that the prejudiced person accepted the act and he no longer relies on the ‘guarantee’ that the person of the principal offers.150 105. The principal is not liable to pay damages to the victim when the unlawful act is irrelevant to or has nothing to do with what has been entrusted to the person assigned because in such a case the causal relationship between the unlawful act of the latter and the exercise or abusive exercise of his assignment is interrupted.151 §2. INDEPENDENT CONTRACTORS 106. According to Articles 681, 688–691 and 698 GCC regulating the contract of work, it derives that the contractor is not usually considered as the auxiliary person of the master of the work. However, when the master of the work reserved for himself, explicitly or not, the direction and supervision of the execution of the work and, mainly, the right to give commands or instructions to the contractor, the latter should be considered as the auxiliary person of the master of the work.152 In case the employer has kept the management and guidance of the carrying out of the work, the contractor is considered as an auxiliary performer as long as he obeys to

149. For the relevant decisions, see M. Stathopoulos, Law of Obligations, General Part, § 7 III, p. 454, no. 47, fn. 67. See also AP 959/2004 EllDni 45 (2004) 1602 (for a brief summary (in English) of the facts and the judgments of said decision as well as a short commentary thereof, see E. Dacoronia, Greece, in H. Koziol & B.C. Steininger (eds), European Tort Law 2004 (2005), pp. 335–336, nos 30, 32–34; 290/2011 NoV 59 (2011) 1224, followed by a note of Z. Tsolakidis = DEE 17 (2011) 1048 = EpiskEmpD 17 (2011) 690 (for a brief summary (in English) of the facts and the judgments of said decision as well as a short commentary thereof, see E. Dacoronia, Greece, in K. Oliphant & B.C. Steininger (eds), European Tort Law 2011 (2012), pp. 284–287, nos 12, 14, 16); Court of Appeal of Thessaloniki 1335/2000 Arm 54 (2000) 926, 927. 150. See relatively M. Stathopoulos, Law of Obligations, General Part, § 7 III, pp. 454–455, no. 47. 151. AP 9/2011 DEE 17 (2011) 698= EllDni 52 (2011) 389 = EEmpD 62 (2011) 639 (for a brief summary (in English) of the facts and the judgments of said decision as well as a short commentary thereof, see E. Dacoronia, Greece, in K. Oliphant & B.C. Steininger (eds), European Tort Law 2011 (2012), pp. 284–287, nos 13, 15, 17). 152. AP 1592/1998 EllDni 40 (1999) 147; 1168/2007 NoV 56 (2015) 1249 (for a brief summary (in English) of the facts and the judgments of said decision as well as a short commentary thereof, see E. Dacoronia, Greece, in H. Koziol & B.C. Steininger (eds), European Tort Law 2007 (2008), pp. 319–321, nos 35–40); 280/2009, supra (fn. 146).

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107–107

the employer’s general orders;153 a loose dependence suffices; a continuous supervision on the part of the employer is not needed.154 If, however, in conformity with the will of the principal, the auxiliary performer had the potential to use third parties (sub-performers) in the execution of the task of the principal, it is accepted by the Court of Cassation155 that the latter is also strictly liable for the harm caused by such sub-performers, without the need to examine whether the principal exercised a control or guidance over the sub-performers as well, in order to establish his liability. 107. As it derives from the provisions of Article 922 GCC in combination with the provisions of Articles 299, 330 sentence b, 914 and 932 GCC in case of death of a person due to the tortuous behaviour of the auxiliary person, the liability of the principal for reparation of the pain and suffering of the members of his family presupposes: a) a relationship stemming from Article 922 GCC b) an unlawful and faulty behaviour on the part of the auxiliary person which is causally connected with the resulting death and c) an interior causal relationship between the abovementioned behaviour and the execution of the service assigned to the auxiliary person. A relationship between the principal and the auxiliary person exists when in the frame of a juridical or another relationship between these two persons, the principal appoints the auxiliary person to perform a function, and the latter is subject to the control or at least to the general instructions of the principal. Thus, this special relationship may also exist in the case of a contract for independent services. In particular, in the case of medical services rendered by a doctor at a medical centre, it derives from the provision of Article 922 GCC that, for establishing the liability of the medical centre as the principal, it suffices that the said medical centre gives general instructions to the doctor as for the place, time and conditions of his work in the medical centre, i.e., that at least a loose dependence of the doctor from the centre exists;156 specific instructions cannot be given to the doctor for the exercise of his profession, as the doctor is obliged, when exercising his medical duties, not to 153. AP 319/2111 Arm 65 (2011) 808; AP 1328/2010, published in NOMOS; AP 561/2009, published in NOMOS; AP 432/2009, published in NOMOS; AP 316/2009 DEE 15 (2009) 811; AP 280/2009 supra (fn. 146); AP 191/2009, AP 1421/2008, both published in NOMOS; AP 1168/2007, NoV 56 (2008) 1249; AP 959/2004, supra (fn. 149); AP 684/1999 EllDni 41 (2000) 344; AP 1592/1998 supra (fn. 152); AP 1048/1999 EllDni 40 (1999) 1516; Thessaloniki Court of Appeal 750/2010 Arm 65 (2011) 1302; Patras Court of Appeal 80/2008 Achaiki Nomologia (Achaian Jurisprudence) 25 (2009) 486. 154. AP 291/2011 DEE 17 (2011) 922. 155. AP 22/2004 NoV 52 (2004) 1206 = EllDni 45 (2004) 715 (for a brief summary (in English) of the facts and the judgments of said decision as well as a short commentary thereof, see E. Dacoronia, Greece, in H. Koziol & B.C. Steininger (eds), European Tort Law 2004 (2005), pp. 335–336, nos 29, 31, 33–34). 156. AP 1362/2007 EllDni 48 (2007) 1351 = TPCL 1(2008) 62; 1226/2007 ChrID H/2008, 324 = TPCL 1 (2008) 60 (for a brief summary (in English) of the facts and the judgments of both decisions as well as a short commentary about them, see E. Dacoronia, Greece, in H. Koziol & B.C. Steininger (eds), European Tort Law 2007 (2008), p. 317–319, nos 26–34); EfAth 4964/2008 NoV 57 (2009) 523; Athens Multi-Member Court of First Instance 260/2014 EllDni 55 (2014) 523; 5990/2008 ChrID IB/2012, 597; K. Fountedaki, Civil Liability of a Private Clinic, ChrID I/2010, 786; K. Georgiou, Vicarious Liability of a Medical Clinic for Medical Error, NoV 60 (2012) 838.

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108–110

Part II, Ch. 1, Vicarious Liability

follow such instructions but to act only according to the fundamental principles of the medical science, i.e., its teachings and the experience gained from those teachings.157 108. As a consequence of the above, in the case of medical centres, where doctors provide their services, if out of a negligent act of the doctor, while exercising his duties, death is provoked, the relatives of the deceased have a claim for pain and suffering against the medical centre, where the doctor was providing his services. The liability of the medical centre is strict and is justified by the fact that the medical centre takes advantage of the services of the doctor, widening its field of business activities; consequently, it is reasonable that the medical centre bears the liability for the risks from the activity of the auxiliary. The principal (medical centre) cannot be exempted from its liability if it proves that no fault (negligence) has been committed in the choice of the auxiliary (doctor) or in the instructions given to him, nor even if it proves that the doctor developed his own initiative within the field of the principal’s activity.158 §3. LIABILITY OF LEGAL ENTITIES FOR ACTS OF THEIR ORGANS (AND FOR ACTS OF PERSONS ENTRUSTED WITH THE POWER TO ACT WITHOUT BEING AN ORGAN) 109. As the organs of a legal person express the will of the legal person,159 Article 71 GCC on the liability of legal persons provides that the legal person is liable for acts or omissions of its legal representatives as its own acts, as long as the act or omission has taken place in the course of the performance of the duties entrusted to them and gives rise to an obligation for damages. Article 71 GCC is a jus cogens rule, as it exists for the protection of the third person who sustains damage160 Article 71 GCC applies when the behaviour of the organ is a tortuous one; in the contractual field, Article 70 GCC on juridical acts of legal persons applies.161 Article 70 GCC stipulates that juridical acts entered into within the bounds of their powers by the organ administrating the legal person are binding on the legal person. 110. For the liability of the legal entity according to Article 71 GCC to be generated, its organs must have acted or omitted to act while performing the duties entrusted to them. Which duties are entrusted to said organs are to be found in the statutes of the legal entity or in a decision of another competent organ.162 The legal 157. AP 1226/2007, supra (fn. 156); 1362/2007 EllDni 48 (2007) 1351 (for a brief summary (in English) of the facts and the judgments of said decision as well as a short commentary thereof, see E. Dacoronia, Greece, in H. Koziol & B.C. Steininger (eds), European Tort Law 2007 (2008), pp. 317–319, nos 27–34). 158. AP 1226/2007, supra (fn. 156). 159. See, among many others, from the recent bibliography, A. Kritikos, in Georgiades & Stathopoulos, Civil Code, Vol. IA, 2nd edn., 2016, Art. 71 no. 1. 160. Kritikos, supra (fn. 159) Art. 71 no. 3. 161. Id., no. 4. 162. Id., no. 14.

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111–112

entity is not liable if its organs acted on the occasion of or in connection to their duties but in excess thereof, an issue that is judged every time according to the facts of each particular case.163 111. According to Article 71 sentence 2 GCC, in case the act or omission of the competent organ is culpable and creates an obligation for remuneration, the organ is also held jointly and severally liable with the legal person. As far as corporations are concerned, the directors cannot be held personally liable for the debts of the company, but the principle of their non-liability is bent and does not apply when fault can be attributed to them, in which case they are held personally liable according to the general provisions on torts (Articles 914 ff. GCC).164 Accordingly, in regard to the issue of a cheque without provision, the person liable to redress the damage caused to the bearer is, apart from the legal person, its legal representative who signed the cheque while knowing that there were no available funds at the time of either the issue or the payment.165 112. For acts of persons entrusted with the power to act without being an organ, the legal entity is not liable according to Article 71 GCC. In such a case, the provision of Article 922 GCC on vicarious liability or of Article 334 GCC on the responsibility for the fault of persons employed in order to fulfil a performance will apply; i.e., the liability of the legal entity will be for acts of third persons and not a liability for its own acts.166

163. Id., nos 15, 16. 164. See id., no. 32. 165. See, i.a., AP 25/2000 EllDni 41 (2000) 712 = DEE 6 (2000) 742 = EEmpD 2000, 320 = NoV 49 (2001) 29; 29/2006 DEE 12 (2006), 930 = EllDni 47 (2006) 1031 = ChrID ΣT/2006, 410, followed by a note of K. Christakakou. 166. See Kritikos, supra (fn. 159), Art. 71 no. 12.

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113–114

Chapter 2. Liability of Parents, Teachers and Instructors 113. According to Article 923 GCC:167 ‘Whoever has the supervision of a person under age or of a person placed under judicial assistance is liable for the damage that such persons unlawfully cause to a third party unless he proves that he has exercised properly the duty of supervision or that the damage could not have been avoided. The person who performs the duty of supervision by virtue of a contract has the same liability.’ 114. According to the Greek jurisprudence,168 the term ‘supervision’ used in Article 923 GCC is perceived as watching over and looking after a minor, instilling him with the rules of social behaviour, directing his attention towards possible dangers stemming from certain objects or actions and protecting him/her from certain situations he cannot cope with. Mere prohibitions do not suffice, as long as the supervisor is not sure that they will be respected. The measure of supervision depends on the circumstances, especially the age, maturity, education of both the supervisor and the person under supervision, the foreseeability or the danger of the tortuous behaviour, etc. Article 926 GCC aims at protecting the third person who sustains damage because of the unlawful act of a minor, who either lacks imputability or is insolvent. In order to assist the victim in establishing his claim, Article 923 GCC introduces the following rebuttable presumptions that: (a) the supervisor out of fault neglected his obligation to supervise and (b) a causal link exists between the neglect and the damage caused. If the supervisor does not rebut the said presumptions, he is held liable towards the victim. The conditions required for establishing the supervisor’s liability are the following: – The existence of a duty stemming from either the law or a contract to supervise a minor or an adult put under judicial assistance, who have to be looked after for their sake or the sake of third parties. The measure of the necessary each time supervision has to be found on the basis of a whole lot of the circumstances; the age, maturity, mental ability of the person under supervision as well as the foreseeability or the dangerousness of the behaviour that caused the damage can be used as criteria. In case more persons are obliged to supervise, all of them are held jointly and severally liable according to Article 926 GCC (e.g., the minor’s parents both exercising the parental care). – A culpable neglect of the supervision, hence, the supervisor’s omission to take all the necessary and possible measures, in order to avoid the third parties’ damage 167. As amended by Art. 21 L. 2447/1996. 168. AP 422/2008 ChrID Η/2008, 785, followed by remarks of K. Christakakou (for a brief summary (in English) of the facts and the judgments of said decision as well as a short commentary thereof, see E. Dacoronia, Greece, in H. Koziol & B.C. Steininger (eds), European Tort Law 2008 (2009), pp. 328–330, nos 12–13, 15, 17); EfAth 777/2005 EllDni 46 (2005) 1493 (for a brief summary (in English) of the facts and the judgments of said decision as well as a short commentary thereof, see E. Dacoronia, Greece, in H. Koziol & B.C. Steininger (eds), European Tort Law 2005 (2006), pp. 315–317, nos 31–34).

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115–116

caused by the person under supervision. According to Article 923 GCC, if the minor unlawfully caused damage, the supervisor is presumed to have with fault neglected the supervision. – An unlawful damage caused to third parties by an act or omission of the person who is under supervision, which meets the objective conditions of a tort, apart from fault. If the person under supervision is capable of imputation and has acted with fault, he is also held liable according to Article 914 GCC, while the joint and several liability of the supervisor is also preserved. – A causal connection between the unlawful behaviour of the person under supervision and the damage of the third party, as well as a causal connection between the supervisor’s neglect and the behaviour that caused the damage, which is presumed according to Article 923 GCC. 115. Should the aforementioned preconditions be met, the supervisor must make reparations for the victim’s material and non-pecuniary damage (Article 932 GCC). The supervisor, in order to rebut the aforementioned presumptions, must invoke and prove either that he exercised proper supervision or that the damage could not have been averted or that no fault can be imputed to him for neglecting supervision or that – given the circumstances – supervision could not have been exercised.169 116. It has to be underlined that Article 923 GCC aims at protecting third persons from minors or persons under judicial assistance, who are usually insolvent and unable to blame and not at protecting the persons under supervision.170 If the supervisor has neglected his obligation to supervise and this has caused damage to the person under supervision, the supervisor is liable not according to Article 923 GCC but according to the provisions from which the obligation for supervision derives (e.g., Articles 1523, 1531, 1632, 1634 and 1680 GCC, which are found in Family Law and establish an obligation for supervision, and Articles 335 ff., 383 ff. GCC, when such an obligation derives from a contract) or, eventually, according to Article 914 GCC.171

169. EfAth 777/2005, supra (fn. 168). See also AP 422/2008, supra (fn. 168). 170. Ap. Georgiades, in: Ap. Georgiades & M. Stathopoulos (eds), Civil Code, Art. 923 no. 3; P. Kornilakis, Law of Obligations, Special Part I, § 92 3I, 549. 171. For an analysis of Art. 923 GCC, see, i.a., Ap. Georgiades, in: Ap. Georgiades & M. Stathopoulos (eds.), Civil Code (1982) 923; P. Kornilakis, Law of Obligations, Special Part I (2002) § 92 3, 548–555; G. Georgiades, in Georgiades SEAK I, Art. 923.

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Chapter 3. Liability for Things and Animals 117. The fact that animals can be dangerous, being able to act independently, without any logic and without any barriers in order to avoid causing damage led the legislator to specially regulate the relevant liability by holding the ‘keeper’ liable. The latter, being the one who draws benefits from the animal must also be burdened with the relevant liability.172 Accordingly, Article 924 GCC stipulates that: ‘The keeper of an animal is liable for the damage caused by the animal to a third party. If the damage was caused by a domestic animal which is used for the profession, the guarding of the house or the nutrition of the keeper, the keeper is not liable if he proves that he is not burdened with any fault regarding the guarding and the supervision of the animal.’173 118. Article 924 § 1 GCC introduces strict liability for the keeper of a nondomestic animal;174 i.e., the keeper is held liable without checking if there was a faulty behaviour on his part in keeping the animal. Article 924 § 2 GCC, however, reintroduces the element of fault in the cases of a domestic animal175 which is used for the profession, the guarding of the house or the nutrition of the keeper. The keeper of such animals is exempted from liability by proving that he is not burdened with any fault regarding the guarding and the supervision of the animal (reversal of the burden of proof, hybrid strict liability).176 119. Article 925 GCC deals with the liability of the owner or possessor of a building or structure in case of damage caused to a third party by their total or partial collapse. Said persons are presumed to be liable, unless they prove that the collapse is not due to a defective construction or to a deficient maintenance of the building or the structure.177 The liability is still based on the fault of the owner or possessor, but the burden of proof is reversed; the said persons are held liable, unless they prove the contrary. It is accepted in doctrine that the owner is liable only if he, personally or through a representative, is also the possessor of the building; 172. See Ap. Georgiades, Law of Obligations, General Part, § 66, p. 748, nos 1–2; G. Georgiades, in Georgiades SEAK I, Art. 924 no. 2; P. Kornilakis, Law of Obligations, Special Part I (2002) § 93 4, 555; A. Vosinakis, in: Ap. Georgiades & M. Stathopoulos (eds), Civil Code (1982), 924 no. 2; Multi-Member Court of Larissa 139/2000 Dikografia (Court File) 2000, 268. 173. For an analysis of Art. 924 see G. Georgiades, in Georgiades SEAK I, Art. 924; I. Karakostas, Law of Torts, § 10, pp. 315 ff.; P. Kornilakis, Law of Obligations, Special Part I (2002) § 93 4, pp. 555 ff.; A. Vosinakis, in: Ap. Georgiades & M. Stathopoulos (eds), Civil Code (1982), Art. 924. 174. For a detailed analysis of the notion of ‘animal’, see, i.a., G. Georgiades, in Georgiades SEAK I, Art. 924 no. 10; P. Kornilakis, Law of Obligations, Special Part I, § 93 4, 557; A. Vosinakis, in Ap. Georgiades & M. Stathopoulos (eds), Civil Code, Art. 924 nos 4–6. 175. For the notion of ‘domestic’ animal and the conditions needed in order for Art. 924 § 2 GCC to apply, see G. Georgiades, in Georgiades SEAK I, Art. 924 nos 23, 24; A. Vosinakis, in: Ap. Georgiades & M. Stathopoulos (eds), Civil Code, Art. 924 nos 4–6. 176. For a criticism of the deviation from the rule of strict liability in cases of domestic animals, see P. Kornilakis, Law of Obligations, Special Part I (2002) § 93 4, 556. 177. For an analysis of the conditions of Art. 925 GCC see, i.a., G. Georgiades, in Georgiades SEAK I, Art. 925; P. Kornilakis, Law of Obligations, Special Part I (2002) § 94 5, 566, 567; A. Vosinakis, in Georgiades & Stathopoulos (eds), GCC, 925.

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120–120

otherwise, the possessor is liable, even if the person who sustained the damage cannot prove that the possessor is also the owner of the building or the structure.178 120. The legislator, having in mind that buildings or structures may be dangerous if they partially fall or totally collapse, and that such fall or collapse is usually due to a defective construction or a deficient maintenance of the building or structure, intended with the above provision to protect third parties in case they sustain damage from such fall or collapse. Another aim of the legislator was to oblige the owner or possessor to show a particular care so as to avoid defects in construction or deficiencies in the maintenance. As the owner or possessor is the only person who is in a position of taking all necessary measures in order to avoid the defective construction or the deficient maintenance and the one who takes pecuniary advantage of the building or the structure, he is the one who has to pay damages for the damage caused and which is due to a defective construction or a deficient maintenance.179 Damages cover pecuniary as well as non-pecuniary ones. The owner or possessor can avoid liability by proving that the collapse is not due to a defective construction or to a deficient maintenance of the building or the structure.180

178. P. Kornilakis, Law of Obligations, Special Part I, § 94 5, 568; A. Vosinakis, in Georgiades & Stathopoulos (eds), GCC, 925 no. 9. 179. See Ap. Georgiades, Law of Obligations, General Part, § 65, no. 30; P. Kornilakis, Law of Obligations, Special Part I (2002) § 94 5, 564; A. Vosinakis, in Georgiades & Stathopoulos (eds), GCC, 925 no. 3. 180. There is no unanimity in legal doctrine about the legal nature of the liability provided in Art. 925 GCC; some authors are of the view that it is strict liability and others that it is hybrid strict liability. For more details and a presentation of the arguments in support of the first view, see P. Kornilakis, Law of Obligations, Special Part I (2002) § 94 5, 565, who also finds this view more correct.

59

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121–123

Part III. Forms of Strict Liability

121. No general rule regarding strict liability, comparable to Article 914 GCC, and regarding strict liability, is to be found in the GCC. The GCC introduces strict liability,181 only as an exception, in two cases: in the case of non-domestic animals (Article 924 § 1 GCC) and in the case of liability for employees (Article 922 GCC); it also makes liability for fault to approximate to strict liability by means of reversing the burden of proof, in case of harm inflicted by a person under supervision (Article 923 GCC) or by a domestic animal (Article 924 § 2 GCC)182 or in case of damage caused by the collapse of buildings or structures (Article 925 GCC) from natural causes and without the intervention of human force.183 The supervisor, or as the case may be, the keeper or the owner, is then presumed to be responsible. The duty to make reparations only arises if they do not satisfy the requirements of the exculpatory proof under Article 923 GCC, or Article 924 § 2 GCC, or Article 925 GCC, respectively.184 122. No-fault liability is also found in special laws which impose strict liability in certain cases. The most usual basis of justification for these cases is that the activity of the person causing the prejudice constituted a source of risk and, usually, a source from which benefits could be drawn for himself (in which case, it seems even more justifiable that the beneficiary should also shoulder the losses stemming from the same source).185 123. Accordingly, in order to cope with the problem of civil liability deriving from the use of sources of increased risk that may lead to mass accidents, such as 181. For the notion of strict liability, see, among many others, Ap. Georgiades, in Ap. Georgiades & M. Stathopoulos (eds), Civil Code (1982), Introductory Remarks to Arts 914–938 Nos 21–38. 182. According to EfAth 1367/2000 EllDni 41 (2000) 798, the horse used for recreation in an urban area is not considered as a domestic animal. 183. Athens Court of First Instance 284/2001 ChrID A/2001, 321, 322. In the same decision, it is stated that the leakage of a pipe also falls under the notion of ‘collapse of buildings or structures’. 184. Ph. Christodoulou, in K.D. Kerameus & P.J. Kozyris (eds), Introduction to Greek Law (in English), p. 147. For an analysis of said articles, see, i.a., G. Georgiades, in Georgiades SEAK I, Arts. 923–925; P. Kornilakis, Law of Obligations, Special Part, §§ 117–119 pp 384–394; Ap. Georgiades, in Ap. Georgiades & M. Stathopoulos (eds), Civil Code (1982), 923; A. Vosinakis, in Ap. Georgiades & M. Stathopoulos (eds), Civil Code (1982), 924, 925. 185. M. Stathopoulos & A. Karampatzos, Contract Law in Greece, 3rd ed. (in English) (2014) § 4 I, p. 48, no. 39. See also E. Dacoronia (Tort Law in Greece. The State of Art) (in English), in Studia in Honorem Pelayia Yessiou-Faltsi, 2007, p. 58.

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motor vehicles, atomic energy, etc., the method of enacting appropriate statutes186 has been followed in Greece.187 Thus the GCC is supplemented by several auxiliary statutes enacted to deal with particular allocations of risk and liability.188 124. Such statutes are the following:189 – L. 3950/1911 on the civil and penal responsibility arising from motor vehicles.190 – L. 551/1915 on the responsibility for accidental injury at work. – L. 314/1976 ratifying the 1969 Brussels International Convention on Civil Liability for Oil Pollution Damage,191 as subsequently amended and complemented; Law 1269/1982 ratifying the 1973 International Convention for the Prevention of Pollution from Vessels; Law 1638/1986 ratifying the 1971 Brussels International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage; the Presidential Decree 81/1989 and the Presidential Decree 494/1989. – L. 563/1977 ratifying the 1972 Washington, London and Moscow International Convention on International Liability for Damage caused by Space Objects. – L. 743/1977 on the protection of the marine environment.192 – L. 855/1978 ratifying the 1976 Convention for the Protection of the Mediterranean Sea against Pollution. – L. 1147/1981 ratifying the 1972 London International Convention on the Dumping of Wastes and Other Matter. – L. 1650/1986 on the protection of the environment (Article 29 of which deals with responsibility for damages arising from pollution of the environment) as amended and complemented by Article 98 of Law 1892/1990 and the Act of the Council of Ministers 19/1988, ratified by Article 1 of Law 1788/1988.

186. Method followed by the European legislation of German origin (German, Austrian and Swiss legislation) and criticized by P. Kornilakis, Risk Liability, 1982, pp. 192–195. 187. See I. Deliyannis & P. Kornilakis, Law of Obligations, Special Part III, § 400, pp. 363–364; P. Filios, Law of Obligations, Special Part, Vol. II, §§ 198 ff., pp. 454 ff.; I. Karakostas, Sources of Increased Pollution of the Vital Area and Their Treatment by Private Law, NoV 31 (1983) 1329, where also (pp. 1317–1321) a presentation of the ways other legal systems use to cope with the problem is made. For such ways, see also Kornilakis, supra (fn. 186), pp. 72 f. 188. See P. Kornilakis, Law of Obligations, Special Part I, §§ 109–112, pp. 668–680. 189. A list of these statutes can be found in I. Deliyannis & P. Kornilakis, Law of Obligations, Special Part III, § 401, 364, 365 as well as in Filios, supra (fn. 187). For a brief analysis of the provisions of most of the said statutes, which are related to civil liability, see I. Karakostas, Environment and Law (2000), Ch. 7, pp. 331–361, as well as in Filios, supra (fn. 187). For the same list and brief presentation of the common features of said statutes (in English), see E. Dacoronia, Mass Torts: A Greek Approach, in RHDI 47 (1994), pp. 94–96. See also E. Dacoronia, Catastrophic Harms and Systems of Indemnification, 2015, pp. 117 ff. 190. For a list of the Greek bibliography related to civil liability arising from motor vehicles, see the note of P. Filios, supra (fn. 187), § 198, p. 454, where also an analysis of the relevant provisions of the law can be found (§§ 198–202, pp. 454–472). 191. For an analysis of the relevant civil liability issues, see, L. Kotsiris, Civil Liability for Oil Pollution Damage, Dedication to Alexandros Litzeropoulos, Vol. A, pp. 505–518. 192. On the relation of this Law to the above-mentioned Law 314/1976, see A. Kiantou–Pampouki, Civil Liability for Marine Pollution: Subjective or Strict Liability? END 17 (1989), pp. 1–10.

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125–127

– L. 1758/1988 ratifying the Protocol for the amendment of the Paris Convention on Third Party Liability in the Field of Nuclear Energy193 of 29 July 1960,194 as amended by the additional protocol of 28 January 1964. – Code of Air Law (L. 1815/1988) on the responsibility of internal flights195 (Articles 106–121). – Emergency Law 596/1937 ratifying the 1929 Warsaw Convention for the unification of certain regulations related to international air transport,196 as amended by the 1955 Hague Protocol (L.D. 4395/1964) and the 1971 Guatemala Protocol (L. 1778/1988) on accidental injury to persons and accidental loss or damage of goods in carriage by air. – L. 3393/2005 ratifying the 2001 London International Convention on Civil Liability for Bunker Oil Pollution Damage. 125. The International Convention on Civil Liability for Damage resulting from Activities Dangerous to the Environment,197 signed at Lugano on 22 June 1993 under the auspices of the Council of Europe, has not yet been ratified by law in Greece. 126. The said statutes, in an effort to solve the problems arising out of mass torts, follow as a rule the principle of strict liability,198 which is in general restricted in a short period of time and limited in amount.199 They provide for the establishment of a compensation fund which will cover the total amount, under limited liability, to be distributed among the claimants in proportion to their established claims. 127. The strict liability imposed on the possessors of sources of increased risk, which, as a rule, can be avoided only in cases of force majeure, led the latter to the obligation of insuring their risk liability. This insurance justifies and enables the

193. For an analysis of the Convention, see Ch. Papathanassiou, Responsibility from Nuclear Accidents and Greek Law, EEN 29 (1962), pp. 264–270. For an analysis of the International Convention on the Liability of Operators of Nuclear Ships, see the article of P. Avrameas, Civil Liability Arising from the Exploitation of a Nuclear Vessel, NoV 11 (1963) 65–70. 194. Ratified by L.D. 336/16.12.1969. 195. See for a relative analysis, R. Chatzinikolaou-Angelidou, Liability of the Air Carrier in the Internal Transport of Persons, Arm 44 (1990), pp. 529–537. 196. For an analysis of the civil liability of the international air carrier, see the dissertations of N. Papachronopoulos, Civil Liability of the International Air Carrier of Goods According to the Warsaw System (1988) and of Sp. Spiliotopoulos, Liability of the Air Carrier for Death, Wound or Other Corporal Injury of the Passengers (1984). For more Greek and foreign bibliography related to the Warsaw Convention, see Chatzinikolaou-Angelidou, supra (fn. 195). For a collection of the Greek legislation and of the abundant Greek jurisprudence related to the air transport of goods, see M. Paterakis, Air Transport of Goods, A: Legislation. B: Jurisprudence (1991). 197. For an analysis of the Convention, see I. Karakostas, Convention on Civil Liability for Damage Resulting from Activities Dangerous to the Environment, NoV 42 (1994) 156–160. 198. On whether the civil liability for marine pollution is strict or not, see the relevant article of KiantouPampouki, supra (fn. 192). 199. For the reasons which dictated such a limitation, see P. Kornilakis, Risk Liability, pp. 180–182.

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economic cover of the damage and indicates that our era is not only one of increased risk but also of increased and ever-increasing insurance coverage.200 128. Also, the general clause on delictual liability (Article 914 GCC) presents some difficulties regarding the proof of fault and causality on the part of the victim, the Greek legislator – following the international tendency of helping the victim when the position of the latter is weak due to the development of the technology and his consequent inability to easily prove fault and causality – has enacted new statutes dealing with particular civil wrongs.201 129. Such statutes are the following: – L. 2251/1994, as subsequently amended, for the protection of the consumer also regulating the liability of persons rendering services. – L. 1178/1981, as subsequently amended, regarding the civil liability of the press. – L. 2472/1997, as subsequently amended, regulating the liability in case of unlawful process of personal data. – L. 3471/2006 on Protection of Personal Data and of Private Life in the Field of Electronic Communications, which incorporated the Directive 2002/58/EC of the European Parliament and the Council of 12 July 2002, as subsequently amended, regulating the liability in case of violation of its provisions.

200. For the social internalization of civil liability through obligatory insurance, see Ap. Georgiades, nos 39–43. 201. Called ‘New Forms of Civil Wrongs of Modern Economy’ by Ap. Georgiades, Law of Obligations, General Part, § 63, p. 722, no. 1.

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Chapter 1. Road and Traffic Accidents 130. L. 3950/1911 on Liability for Automobiles, the force of which, as amended by subsequent laws, has been extended across the entire Greek State according to Article 114 of the Introductory Law GCC, provides for strict liability in case of road and traffic. The main provisions of said law are the following. 131. The driver and the possessor of a car are liable to pay damages for any damage caused to third parties from its operation. The owner, in the event that he is not the possessor of the car, is liable only up to the value of the car; by giving the car to the victim he can, according to the judgment of the court, be discharged from all other liability in damages. In the case of multiple possessors or owners of the car, liability is regulated according to Article 9 of this Law (Article 4). None of the above persons is exempt from the obligation to pay damages according to the previous article for any reason, unless he proves that the accident was due to force majeure or the fault of the victim or it was the result of a culpable act of a third party not relating to the operation of the car. Proof of these facts also exempts the driver; if the accident took place because of a defect in the car, the driver is exempt if he proves that he could not have known of the defect even if he had exercised due care (Article 5). 132. In the case of joint responsibility of the driver of the car on the one hand and the victim on the other, and joint damage therefrom, damage is allocated to each party according to the degree of fault (Article 6). 133. The action for damages is time-barred two years after the date of the accident (Article 7). 134. In the case of an accident due to the fault of a person, any non-culpable person who was obliged to pay damages has a right of recourse against the culpable party. This recourse is governed by the ordinary rules of civil law. The recourse is time-barred two years after the date of payment (Article 8). 135. The judge, when assessing the damages to be paid, has to take into consideration the particular circumstances of the case, such as the existence or nonexistence of fault, its degree, the criminal or non-criminal character of the act or omission, the financial situation of both the person who caused the accident and the victim, as well as the testimony of persons present at the accident and excluded from testimony on the basis of kinship according to the provisions of the GCCP. Where multiple persons are obliged to pay damages, each is liable independently from the other for the amount for which he is obliged by the court to pay, and the person entitled to damages cannot collect from all together an amount that exceeds the largest amount of damages imposed on any of them; among themselves said persons have the right of recourse according to the principles of civil law (Article 9). 136. In the case of a collision of two or more cars, the person who is at fault for the accident is liable to pay damages. Fault is judged according to ordinary law. Damages are awarded according to Article 9 of this Law (Article 10). 65

137–141

Part III, Ch. 1, Road and Traffic Accidents

137. This Law does not apply for the benefit of passengers of the car that caused the damage or to things carried in it. Damage caused by the car to the above persons and things is governed by ordinary law (Article 12). 138. Cars belonging to the armed forces, the fire brigade and any public or municipal service that is used for emergency purposes are exempt from the provisions of this Law (Article 13).202 139. Agreements contrary to this Law are not valid if made before an accident. Further obligations, apart from those stipulated in the previous articles, arising from civil law or any other law are not excluded by this Law (Article 14). 140. It has to be noted that the driver, possessor and owner of the car involved in the accident are not strictly liable, according to L. 3950/1911, towards the passenger of said car, who has been injured. The said passenger, however, has a claim against the driver of the car according to Article 914 GCC and against the owner, or possessor of the car, who has entrusted the driving of his car to a friend or to his son, according to Article 922 GCC regulating vicarious liability. The existence of a juridical act or a stricto sensu contract between the driver and the owner of the car is not necessary, in order that the vicarious liability is generated; a purely factual or friendly or parental relationship suffices.203 141. In relation to road accidents, the Greek Court of Cassation has steadily repeated that: – the drivers of vehicles are obliged not only to abide by the Highway Code but to go even beyond what is dictated by the said Code when this is necessary in order to avoid a detriment or in order to diminish the detrimental consequences of an act, as stated above;204 – the violation of the provisions of the Highway Code by the injured party (i.e., the consumption of alcohol or the omission of the use of a helmet by a motorbike rider) as such does not mean that the injured party has contributed by his own conduct to the damage. It constitutes, however, an element that is going to be taken into consideration by the Court. The latter will judge whether there is a causal relation between the particular behaviour in violation of the Code and the prejudice.205 202. Liability regarding cars belonging to the State is regulated in detail by L. 976/1979. 203. AP 96/2003 ChrID Γ/2003, 335–336 (for a brief summary (in English) of the facts and the judgments of said decision as well as a short commentary thereof, see E. Dacoronia, Greece, in H. Koziol & B.C. Steininger (eds), European Tort Law 2003 (2004), p. 219, nos 24–26); 306/2005 EEN 2005, 528 (for a brief summary (in English) of the facts and the judgments of said decision as well as a short commentary thereof, see E. Dacoronia, Greece, in H. Koziol & B.C. Steininger (eds), European Tort Law 2005 (2006), p. 315, nos 28–30). 204. Under Part I, Ch. 1, § 3, p. 33. 205. See, indicatively, AP 619/2000 EllDni 42 (2001) 73, 74 = NoV 49 (2001) 1010 f.; 1071/2000 EllDni 42 (2001) 392; 1128/2000 ChrID A/2001, 310 (for a brief summary (in English) of the facts and

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142–145

Chapter 2. Product Liability 142. Directive 85/374/EC on the protection of the consumer was incorporated in Greece with L. 2251/1994 on the protection of the consumer.206 According to Article 6 § 1 of L. 2251/1994, the producer is liable for any damage caused by a defect in his product. The injured party is required to prove the damage, the defect and the causal relationship between the defect and the damage. Fault is not a precondition of the liability established by Article 6 L. 2251/1994. 143. Article 6 §§ 2a, 3, 4 L. 2251/1994 gives a broad definition of the producer, which includes all persons involved in the production and distribution process, i.e., the producers of the finished product, the producers of a component part or raw material, the importers, the suppliers, the persons who present themselves as producers by affixing their name, trade mark or other distinguishing feature or who supply a product the producer of which cannot be identified. Due to the broad conception of the producer, the person liable can be in almost every case determined. 144. Article 6 § 8 L. 2251/1994 introduces strict liability, regardless of fault and illegality. The plaintiff must merely invoke and prove the defectiveness of the product, which resulted in the provocation of the damage. However, according to the Greek law, the state-of-the-art defence is explicitly given to the producer of a defective product, in order to be freed from any liability (Article 6 § 8 L. 2251/1994). 145. It has to be mentioned that since long before the introduction of L. 2251/ 1994 for the Protection of the Consumer,207 the Greek courts have applied by analogy Article 925 GCC to the producer’s liability and held the producer liable for the defect and the damage caused to the consumer, unless he proved that he was not responsible for the defectiveness of the product.208 And this is because the consumer is not familiar with the production line and cannot throw light on the facts that have led to his damage. Such facts are found in the area of risks of the producer, who has, as the above-mentioned persons (owners or possessors of buildings or structures), a general duty of care and providence arising from the requirement of good faith taking into consideration business usages (Articles 200, 281 and 288 GCC); in order to avoid liability, he had to prove the absence of fault on his part (‘principle of the origin of risks’ or ‘principle of the fields of influence’).

the judgments of said decision, see E. Dacoronia, Greece, in H. Koziol & B.C. Steininger (eds), European Tort Law 2001 (2002), pp. 276–277, nos 26–28); AP 1121/2009 and 1124/2009 both published in ISOKRATIS. 206. For an analysis of said law, see I. Karakostas, The Producer’s Liability for Defective Products (2008); I. Karakostas, Consumer Protection Law (in English), 2012; I. Karakostas & D. Tzouganatos, Consumer Protection (L. 2251/1994) (1997). 207. For an analysis of said law, as subsequently amended (in English), see I. Karakostas, Consumer Protection Law (in English). 208. Leading decision was decision 1259/1977 of the Court of Appeal of Thessaloniki, Arm 32 (1978), 121.

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Chapter 3. Liability for Service 146. There is no unanimity in theory on whether the legal ground for the liability of persons rendering services, which stems, as previously mentioned, from Article 8 L. 2251/1994, is contract, tort, or the law. Also, though it functions as a liability complementary to the liability of the producer for defective products provided in Article 6 of the aforementioned law, the liability of persons rendering services is not a strict liability but a hybrid strict liability, which means that fault is required, but there is a reverse of the burden of proof.209

209. Ap. Georgiades, Law of Obligations, General Part, § 63, p. 723, no. 3.

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Chapter 4. Environmental Liability 147. In 1986, the Parliament enacted the law-frame 1650/1986 ‘for the protection of the environment’. According to the said law, any act or omission leading to the ‘pollution’ or ‘contamination’ or ‘degradation’ of the environment and resulting in adverse secondary effects in as much to the environmental ‘goods’ as to the human being constitutes an offence to the environment. 148. According to the definitions of Article 2 §§ 2–4 L. 1650/1986, ‘pollution’ is the presence of pollutants in the environment, meaning any sort of substances, noise, radiation or other forms of energy in such quantity, concentration or duration, that makes them capable of causing negative effects on health, living organisms and ecosystems or capable of material damage and generally capable of rendering the environment unsuitable for its desired uses. ‘Contamination’ is a form of pollution characterized by the presence of pathogenic microorganisms in the environment or of indicators suggesting the probable presence of such microorganisms. Finally, ‘degradation’ is the pollution or any other changes to the environment caused by human activity and capable of probable negative effects on ecological equilibrium, quality of life and health of inhabitants, historic and cultural heritage, and aesthetic values. 149. Apart from the penal and administrative sanctions provided in the above law, Article 29 thereof deals with civil liability and defines that: ‘Whoever, physical person or legal entity, provokes pollution or other degradation to the environment, is liable to damages, unless he proves that the damage is due to an act of God or it was the result of a third party’s culpable act. The third party must have acted “on purpose.”’ As derived by Article 29, in order to establish liability, it suffices that there is an unlawful act or omission causing pollution or environmental degradation, damage and causation between the said act or omission and the damage. The defendant may assert the defences of act of God or the malicious act of a stranger, in order to be discharged of liability. 150. The objective of Article 29 is to protect persons and goods exposed to the risks, which installations and activities, possibly prejudicial to the environment, entail. Therefore, Article 29 L. 1650/1986 provides for a type of risk liability,210 but it has been severely criticized by scholars mainly on two grounds: (1) on the ground that it is too general, not differentiating in their consequences the minor polluting activities from the severe ones. The establishment of strict liability, without taking into consideration how dangerous the specific source is (which, as a rule, stands in conjunction with the economic size of the activity), renders the provision particularly insufficient against ‘small and mediumsized’ offenders of the environment and, on the other hand, lenient against the source operators of increased potential danger to the environment; 210. I. Karakostas, Environmental Law, 2nd edn., 2006, pp. 518–519.

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(2) on the ground that in the cases of sources of increased pollution, the introduction of the exemption of liability in case of an act of God, etc., might prove non-equitable for the society that would sustain the damage.211 151. For the above-mentioned reasons, the adoption of a strict liability clause is proposed, which will exclusively cover only the source of increased risk to the environment.212 Also, due to the above criticism, scholars and jurisprudence tend to find the solution elsewhere when it comes to civil liability of sources of regular pollution or degradation to the environment, and in particular in the provisions of GCC. 152. Reflecting a period when pollution of the environment was not a vital problem, the GCC did not include provisions especially devoted to the protection of the environment. Nevertheless, its provisions regarding: – neighbour-law (Articles 1003, etc. GCC); – the protection of common things, such as the air and the sea, and of things of common use, such as big lakes, rivers, etc.; – the protection of the personality (Articles 57–59 GCC);213 – all of them read in the light of the Greek Constitution of 1975, as revised in 2001, which in its Article 24 introduces an express right for the protection of the environment, prove to be an adequate ground for the solution of legal problems arising from the pollution of the environment. 153. The Greek Civil Courts, when deciding on cases involving environmental issues, have succeeded in giving satisfactory solutions by applying the abovementioned articles of the GCC and in particular the articles for the protection of the personality (Articles 57 ff. of the GCC).214 Environmental disputes are usually the object of petitions for interlocutory injunction for provisional and protective measures on the basis of the provisions for the protection of the personality. Individuals or legal entities resorting to civil courts usually aim at the prevention or the

211. See id., pp. 515–518. 212. Id., pp. 589–592. 213. The claims provided for in case of an offence against the vital space and resulting from the infringement of the personality right (Art. 57 GCC) are the following: (a) claim for an injunction ordering the cessation of the activity; (b) claim for an injunction to restrain future infringements; (c) claim for damages, provided the specific requirements of the law of torts (Art. 914 GCC) are fulfilled; and (d) claim for damages for emotional stress and strain (Art. 59 GCC). 214. See, i.a., AP (in full bench) 7/1992 NoV 41 (1993) 63; AP 1588/1999 Perivallon kai Dikaio, Environment and Law (PerDik) 1/2000, 62 followed by a note of A. Calavros; 286/1987, EllDni 29 (1988) 1365; Court of First Instance of Thessaloniki 10623/2003, Arm NΗ, 423; Court of First Instance of Kalamata 109/2003 PerDik 2/2004, 217; Court of First Instance of Volos 2785/2003, PerDik 3/2003, 443; Court of First Instance of Mesologgi 77/2000, PerDik 4/2001, 575, followed by a note of E. Dacoronia; Court of First Instance of Ioannina 471/1996, PerDik 1/1997, 84, followed by a note of E. Dacoronia; Court of First Instance of Serres 12/1994, NoV 42 (1994) 1032; Court of First Instance of Chalkida 336/1992, EllDni 33 (1992) 1513; Court of First Instance of Korinthos 301/1992, not published; Court of First Instance of Nafplio 163/1991, NoV 39 (1991) 786.

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cessation of the environmental damage and less at the restitution of damages caused, as the latter in most cases are unable to be evaluated or even to be comprehended. 154. However, a violation of the right of use of a thing common to all or of a thing in public use, i.e., of an element of the living space, may establish tortious liability for the reparation of environmental damages according to Article 914 GCC. This reparation includes the reduction of the value of the existing estate of the injured party (positive damage, damnum emergens), as well as the loss of profit (lucrum cessans). That which can be expected as probable profit in the usual course of events or by reference to the special circumstances and particularly to the preparatory measures taken shall be reckoned as loss of profit (Article 298 GCC).215 Regardless of the compensation for damages to property, the court may award reasonable, according to its judgment, pecuniary compensation, due to emotional stress and strain for damage to goods (such as life, health, physical integrity, freedom, and honour.). 155. Compensation, in principle, is paid in money (Article 297, subparagraph 1 GCC). Provision, however, is made, by way of exception, for the possibility of its payment in natura. Thus, subparagraph 2 of Article 297 GCC lays down that the court may, taking into consideration any special circumstances, order, in lieu of compensation in money, the restoration of the former state of affairs (status quo ante), if this is not contrary to the interests of the creditor. In the case of ecological damage, the provision of Article 297 GCC provides the legal basis so that the restitution in natura of the impaired element of the environment, to the extent that is possible, is achieved. 156. The enforcement of the provisions ensuing from Article 914 GCC concerning environmental damages often collides with the inability of the damaged party to prove the wrongfulness of the damaging party on the one hand and the causal relationship between the unlawful and culpable behaviour and the environmental damage on the other hand. Nevertheless, an effort is being made to deal with the difficulty of the damaged party to prove the culpability of the damaging party and the contribution of the causative link through the development of care and safety obligations of those operators representing a source of danger for the environment, in conjunction with the reversal of the burden of proof of the causative link on the basis of the theory of spheres of influence. 157. Furthermore, L. 2251/1994 on the protection of the consumer can be applicable to cases concerning environmental damage.216 158. The goods which fall under the protective scope of the law may be either material or elements of the personality, which means that liability based on said law 215. For the notion of positive damage and loss of profit in Greek law, see (in English) M. Stathopoulos & A. Karampatzos, Contract Law in Greece, Part 1, Ch. 6, pp. 205–206, nos 305–306. 216. I. Karakostas, Environmental Law, pp. 544 ff.

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is also established in case of environmental damage.217 In particular, Article 6 L. 2251/1994 regulating the liability of the producer for defective products stipulates in § 1 that the producer is liable for any damage which is due to a defect of his product and in § 6, as replaced by Article 7 § 2 L. 3587/2007, that in the damage of § 1 is included: (a) the damage caused because of death or personal injury; (b) the impairment to because of the defective product, or the destruction of, any pecuniary item of the consumer other than the defective product itself, including the right of use of the environmental goods, provided that the damage from their impairment or destruction exceeds the sum of EUR 500 and provided that they were intended from their nature to be used, and in fact they were used by the person who sustained the damage for his own personal use or consumption. 159. In comparison with L. 1650/1986 and Article 914 GCC, the legal basis of L. 2251/1994 presents the following advantages:218 (1) Article 6 §§ 2a, 3, 4, as mentioned above, gives a broad definition of the producer, so the person liable can be in almost every case determined. Therefore, while in regard to environmental cases, it is not easy as a rule to impute the damage to someone, the application of L. 2251/1994 significantly facilitates the determination of the person liable for reparations. (2) Article 6 introduces strict liability, regardless of fault and illegality. The plaintiff must merely invoke and prove the defectiveness of the product, which resulted in the provocation of the damage. However, the state-of-the-art defence is explicitly given to the producer of a defective product in order to be freed from any liability (Article 6 § 8 L. 2251/1994). (3) Article 8 provides for the reverse of the burden of proof on the provider of services, which also extends to cases of damages to environmental elements.219 160. Finally, it has to be mentioned that, as mentioned above, apart from the frame-law for the protection of the environment (L. 1650/1986), civil liability covering particular risks is also provided by important special laws, such as follows: – L. 314/1976 and L. 1638/1986, ratifying respectively the 1969 Brussels International Convention on Civil Liability for Oil Pollution Damage and its supplementary International Brussels Convention of 1971 on the Establishment of an International Fund for Compensation for Oil Pollution Damage. – L.D. 336/1969, which ratifies the 1960 Paris Convention on Civil Liability in the Nuclear Energy Sector and the attached protocol, as in force today after L. 1758/ 1988 on Civil Liability in the Nuclear Energy Sector. – L. 743/1977 on the protection of marine environment, L. 1147/1981 ratifying the 1972 London International Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter and L. 855/1978 ratifying the 1976 Barcelona International Convention for the Protection of the Mediterranean Sea against Pollution. 217. See id., p. 549. 218. Id., p. 550. 219. Id., pp. 554, 555.

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Chapter 1. Limitation of Action (Suspension and Interruption) §1. THE SPECIAL PROVISION OF ARTICLE 937 GCC 161. According to Greek law, claims, as a rule, are barred after twenty years (Article 249 GCC: ordinary prescription). The law can, however, provide for a shorter prescription. Article 937 GCC counts among the provisions that provide for a shorter prescription. It provides in § 1 that the claim arising from tort is barred by prescription in five years from the time the victim has had knowledge of the damage and of the person bound to pay damages. It further provides, however, that, without regard to such knowledge, the claim arising from tort is barred in twenty years from the commission of the act, returning to the rule of Article 249 GCC. Article 937 GCC in § 2 also provides for a longer prescription period if the tort is at the same time a punishable act for which criminal law prescribes a longer prescription period. In such a case, the longer prescription prevails.220 162. The Court of Cassation ruled221 that by knowledge of the damage under the said article is understood the knowledge of the detrimental consequences of the act, not the knowledge of the exact extent of the detriment or of the amount of damages and that in case of a continuing damage, the claim of damage is not being reborn continuously; the claim for the future damage is also born from the beginning, from the moment the act has started to send out its detrimental consequences, given that, according to the usual course of things, such a future damage could be foreseen.222

220. For an analysis of Art. 937 GCC see, i.a., P. Kornilakis, § Law of Obligations: Special Part I, 107 9, pp. 655 f. 221. AP 1239/2000 (2001) ChrID A/2001, 313, 314; 53/2002 EllDni 43 (2002) 761–762; 123/2002, published in NOMOS (for a brief summary (in English) of the facts and the judgments of the last two decisions as well as a short commentary thereof, see E. Dacoronia, Greece, in H. Koziol & B.C. Steininger (eds), European Tort Law 2002 (2003), pp. 247–248, nos 63–65). 222. See relatively Ap. Georgiades, in: Ap. Georgiades & M. Stathopoulos (eds), Civil Code (1982), 937, no. 19, P. Kornilakis, Law of Obligations: Special Part I, § 107 9 I, 657, note 6 (for a brief summary (in English) of the facts and the judgments of said decision as well as a short commentary thereof, see E. Dacoronia, Greece, in H. Koziol & B.C. Steininger (eds), European Tort Law 2000 (2001), under AP 1239/2000, pp. 283–284, nos 57–59).

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From this moment, the five-year prescription period provided by Article 937 § 1 GCC starts running for the whole damage.223 163. As derived from the combination of Articles 247, 251, 298, 914 and 937 GCC, in case of a tort, a claim for damages is born as to the whole damage, positive or lost profit, present or future, provided that it is foreseeable according to the usual course of events and that it can be judicially pursued. The five-year prescription period of the said claim commences as to the whole damage from the moment the injured party acquired knowledge of the first detrimental consequences and of the person of the tortfeasor.224 164. It has to be mentioned here that in case of car accidents, the claim of the third party injured from a car accident against the person who caused the damage is subject to either a two-year (Article 7 L. 3950/1911 on the civil and penal responsibility arising from motor vehicles) or a five-year (Article 937 GCC) prescription period, depending on which provision it is based. 165. The general rules on suspension and interruption of prescription also apply to the prescription of a claim arising from tortious liability.225 This means that the prescription period is suspended in those cases stipulated by law (Articles 255 ff. GCC), for example, in cases of cessation of administration of justice or force majeure within the last six months of the period of prescription, etc. Special protection is provided at this point for claims of minors or against spouses or parents or children (during the minority of the latter). Furthermore, the prescription period is interrupted if the obligor acknowledges the claim or the holder of the right institutes legal action or other legal proceedings (Articles 260 ff. GCC).226 166. As already mentioned, Article 937 GCC in § 2 also provides for a longer prescription period if the tort is at the same time a punishable act for which criminal law prescribes a longer prescription period. In such a case, the longer prescription prevails.227 According to the long-established position of the Court of 223. AP 1239/2000 ChrID A/2001, 313, 314. See also Ap. Georgiades, in Ap. Georgiades & M. Stathopoulos (eds), Civil Code, 937; Ap. Georgiades, Law of Obligations, § 62, pp. 717–718, nos 102–104; G. Georgiades in Georgiades SEAK I, Art. 937; I. Karakostas, Civil Code, Law of Obligations: Special Part, Vol. 6, 2009, pp. 1264 f. 224. AP 996/2007, NoV 55 (2007) 2435 (for a brief summary (in English) of the facts and the judgments of said decision as well as a short commentary thereof, see E. Dacoronia, Greece, in H. Koziol & B.C. Steininger (eds), European Tort Law 2007 (2008), pp. 330–331, nos 66–68). 225. Ap. Georgiades, in Ap. Georgiades & M. Stathopoulos (eds), Civil Code, 937 nos 1 and 52; P. Kornilakis, § 107 9 III, p. 661. 226. M. Stathopoulos & A. Karampatzos, Contract Law in Greece (in English), Part 1, Ch. 6, pp. 214–215, no. 321. 227. For a detailed interpretation of Art. 937 § 2 GCC with further references, see S. Ioakeimidis, The Special Prescription of Art. 937 § 2 GCC and the Civil Law Protection of the Victim of a Criminal Activity, EllDni 54 (2013) 359–383. A summary of the content of said article (in English) was presented by E. Dacoronia, in E. Karner & B.C. Steininger (eds), European Tort Law 2013 (2014), pp. 297, 298, nos 50 and 51.

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Cassation228 and the prevailing view in the Greek doctrine,229 this longer prescription, which does not presuppose the existence of a verdict of guilt nor the submission of a relevant penal charge – it suffices that there is an objectively punishable act according to the Penal Law – only applies against the tortfeasor himself. Accordingly, the Court of Cassation has held that the longer prescription does not apply against the heirs of the tortfeasor who dies before the filing of the tort action; to the claim brought against said tortfeasor’s heirs, the five-year prescription of Article 937 § 1 GCC applies.230 In the same way, the Court of Cassation has also held that in case a different person than the tortfeasor (e.g., a legal entity called to pay damages for criminal acts of its organs) is obliged to pay these damages, then the prescription time is that of five years from the time the victim became aware of the damage and of the person who is obliged to pay damages.231 167. The issue of whether the suspension of the penal prescription of the misdemeanour for a maximum period of three years during the main proceedings and till the sentence becomes irrevocable according to Article 113 § 2 GPC affects the prescription period of Article 937 § 2 GCC has been a controversial one in Greek doctrine and jurisprudence. According to one view,232 if the claim derives from an unlawful act which is also a misdemeanour, the longer prescription can be eight years and starts from the day the offence was committed. According to this view, the legislator wanted the claim of the State for the punishment of the tortfeasor as well as the claim of the victim against the tortfeasor to be submitted to the same period of prescription; a different solution, where the civil liability is excluded while the penal claim of the State continues to exist, is contrary to the principle of proportional measures, as civil claims will be extinguished, while the tortfeasor will still run the risk of being deprived of more important rights, such as the right to freedom.

228. See AP 981/2019, ChrID IΘ/2019, 662, followed by a dissenting Note of S. Ioakeimidis, p. 663; 1546/2008, NoV 57 (2009) 435 (for a brief summary in English of the facts and the judgment of the Court in said decisions, see E. Dacoronia, in E. Karner & B.C. Steininger, European Tort Law 2019 (2020), pp. 264, 265, nos 39 and 40 and in H. Koziol & B.C. Steininger (eds), European Tort Law 2008 (2009), pp. 334, 336, nos 30 and 37, respectively); 1749/2007, published in NOMOS; 16/1998 Armenopoulos 1988, 552. 229. See, i.a., Ap. Georgiades, Law of Obligations, General Part, § 62, p. 719, no. 110; P. Filios, Law of Obligations, Special Part, Vol. II, 7th ed., 2011, § 191 α. Bα, p. 430; P. Kornilakis, Law of Obligations, Special Part I, § 107 no. 13; I. Spyridakis & E. Perakis, Civil Code, Vol B/2, Art. 937 no. 15; G. Georgiades, in Ap. Georgiades, SEAK I, Art. 914 no. 33. Contra Ioakeimidis, supra (fn. 227 and 228), who follows the minority view of the judge of the Court of Cassation K. Valmantonis, in AP (in full bench) 21/2003 EllDni 43 (2002) 946, according to which the ratio behind the provision of Art. 937 § 2 GCC is to protect the victim of the delictual act and give the latter the possibility of being compensated as long as this act remains punishable, irrespective of who is the defendant. According to S. Ioakeimidis, this view is also supported by the wording of Art. 937 § 1 GCC which does not use the term ‘tortfeasor’ but ‘the person who is obliged to pay damages’. 230. AP 1546/2008, supra (fn. 228). 231. AP 981/2019, supra (fn. 228). 232. AP 703/1998 PChr 49, 237. See also on the subject matter AP 374/2001 ChrID A/2001, 417, 418, with a relevant note of G. Iatrou, ChrID A/2001, 419.

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168. According to another view,233 which has been adopted by the full bench of the Court of Cassation,234 and followed thereafter by the Court235 and Courts of Appeal,236 the legislator, referring in paragraph 2 of Article 937 of the GCC to the ‘longer prescription period according to criminal law’, means the period provided in abstracto by Article 111 GPC and not the one after taking into account the period of suspension of the prescription of the offence according to Article 113 GPC. This period of suspension has no legal effect on the prescription of the claim. The latter is neither interrupted nor suspended with the suspension of the prescription of the offence. The suspension and interruption of the prescription of the claim are governed by the relative provisions of the GCC (Articles 247 ff. GCC) and not by those of the GPC. The rules on penal prescription and the rules on civil prescription constitute two separate systems of rules.237 Thus, the acts that entail the interruption or suspension of the prescription are judged separately in the GCC and in the GPC. Consequently, the period of suspension of a misdemeanour (maximum three years during the main penal proceedings and until the sentence becomes irrevocable according to Article 113 § 2 GPC), is not taken into account when comparing whether the penal prescription is longer than the civil prescription. The penal prescription of Article 937 GCC only refers to the general regulation of Article 111 GPC, from which it derives whether the penal prescription is longer or not. The view that the three-year period of suspension of the penal prescription is added to the basic (in abstracto) five-year penal prescription does not satisfy the principle of certainty of law, which dictates that the duration of the prescription must be determined from the beginning. The decisions though had a minority of one member who shared the other view expressed above and which we also find more convincing. §2. BEGINNING OF THE PRESCRIPTION OF THE CLAIM FOR DAMAGES DERIVING FROM AN OMISSION 169. The Court of Cassation seems to have two different approaches regarding the beginning of the prescription of the claim for damages that derives from an omission. According to the first approach, adopted by its B2238 and C’ Civil Divisions,239 if the damaging consequences of the tort are continuously produced, as in the case of torts committed by omission, the claim for compensation is not continuously reborn, but was born once, when the omission took place for the first time, 233. AP 779/2002 ChrID B/2001, 696, 697 (for a brief summary (in English) of the facts and the judgments of said decision as well as a short commentary thereof, see E. Dacoronia, Greece, in H. Koziol & B.C. Steininger (eds), European Tort Law 2002 (2003), pp. 248–249, nos 66–70). 234. AP 21/2003 (full bench) 2003 ChrID Γ/2003, 613–614 = ArchN 34 (2003) 481–483, followed by a note of C. Nikolaides. 235. AP 1169/2004 and 816/2003, both published in NOMOS. 236. EfAth 3348/2006 EllDni 48 (2007) 281; 367/2005, published in NOMOS; Ioannina Court of Appeal 137/2006, Arm 2007, 712. See also G. Georgiades, in Georgiades SEAK I, Art. 937 no. 36. 237. This view is expressed by K.A. Kafkas, Kakas, K. & Kafkas D., Law of Obligations: Special Part, Vol. B, 7th ed., 1993, 935 and I. Spyridakis, Tort According to Art. 914, Theoretical Problems and Practical Applications (1999), 166. 238. AP 420/2002 (B2 Civil Division), EErgD 2003, 1025. 239. AP 951/2008 (C Civil Division), published in NOMOS.

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from when also the twenty-year prescription provided by Article 937 § 1 sentence b GCC begins. According to this view, the legislator aims to serve the certainty of law by regulating a maximum limit (twenty years) of duration of the possibility to file a claim for damages in tort; for this twenty-year period of prescription, it is irrelevant if the victim has had knowledge of the damage and of the person bound to pay damages; the twenty-year prescription period starts to run from another, more stable time, the time of the commitment of the act, and ends twenty years after. The unlawful behaviour (positive act or omission) of the tortfeasor as such – and not the time the consequences of this behaviour appear (i.e., when the damage occurs) – is understood as the time of the commitment of the act, from which point in time the twenty-year prescription starts to run. As a consequence, the prescription may start, by derogation of the rule of Article 251 GCC, even before the occurrence of the damage, which may appear after the commitment of the tort, 170. According to the view followed by its A1 Civil Division,240 however, when the persistency of the damage is due not to the once committed tort but to the unlawful and culpable omission of the tortfeasor to lift the damaging situation, the tort cannot be considered as completed, given that the unlawful omission continues. Thus, the prescription period begins to count from the moment the person who sustained the damage took knowledge of the whole damage. We are of the opinion that the second approach, which is also shared by Greek scholars,241 is more convincing. 171. Consistent with this position, the A1 Civil Division of the Court of Cassation, in a case where there was an omission (negligence in taking the appropriate measures), the consequences of which (the collapse of a factory) appeared later (after an earthquake), held242 that it derives from Article 17 GPC that crimes committed by omission realize when the tortfeasor should have acted.243 As a consequence, in the case presented before the Court, the period starting from the delivery of the building which had been constructed in violation of the rules of construction (1979) and finishing when the building collapsed (7 September 1999) is the time that the crime has been realized. Accordingly, the Court confirmed the decision of the Court of Appeal which found that the claim of the victims’ relatives was not prescribed; the twenty-year prescription period provided for by Article 937 GCC had not elapsed, given that the defendants’ omission to repair the building lasted until 1999 when the factory collapsed. The engineer and constructor had, according to the Court, the legal duty to eradicate the consequences of the violation of the generally accepted technical rules and building standards, during the whole period from the construction of the building till its collapse, either by repairing the defective building or, in case they could not repair the defects, by informing the competent authorities about its non-conformity with the generally accepted technical rules and 240. AP 1024/2008 (A1 Civil Division), published in NOMOS. 241. See Ap. Georgiades, in: Ap. Georgiades & M. Stathopoulos (eds), Civil Code (1982) 937, no. 23; G. Georgiades, in Georgiades SEAK I, Art. 937 no. 21. 242. AP 602/2015 A1 Civil Division, published in NOMOS. 243. AP (in full bench) 8/2005, 9/2005, 11/2005, supra (fn. 87).

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building standards so that the appropriate measures could have been taken (e.g., evacuation of the building, no use of it, etc.). Thus, the twenty-year prescription provided for in Article 937 GCC had not been completed, though more than twenty years had elapsed from the completion of the construction of the building. It had been commented however244 that this construction of the Court of Cassation is artificial and uncertain, in particular if somebody would try to generalize. And this even more when previously the Court of Cassation had held that when a tort is committed by a continuing omission, its prescription starts from the moment the omission first occurred; otherwise, the prescription provided for in Article 937 § 1 sentence b GCC would be annulled.

244. Kl. Roussos, Prescription of the Claim Based on Tort, ChrID ΣT/2006, 89.

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Chapter 2. Grounds of Justification 172. Grounds that justify a behaviour which, thus, ceases to have an unlawful character are either provided in a provision of law (e.g., Articles 282, 284, 285, 985 § 1 GCC; Articles 20, 22, 25 GPC), deduced by analogy from such a provision or derive from the general spirit of the legislation and specially from the rules of good faith and honesty or diligence.245 Such grounds are:246 §1. CONSENT 173. The ‘consent of the victim’ to an injury to one of his legal goods for the sake of another good, or, in any case, in order to serve a certain aim, as is the case of the consent to surgery.247 The consent is a quasi juridical act. The provisions for the juridical acts apply to the consent by analogy. As a consequence, the consent is null and does not lift the unlawful character of the behaviour of the tortfeasor if it is contrary to the law or to good morals (Articles 174, 178, 179 GCC) and in general to the ‘public order’.248 Accordingly, the GPC stipulates that the simple bodily harm of Article 308 GPC, i.e., the intentional injury or harm to the health of another person, is not unjust when it is committed with the victim’s consent, and it is not contrary to good morals (Article 308 § 2 GPC). 174. The consent lifts the unlawful character of the act only when another legal good of the person who gives the consent is going to be saved and this other legal good has, according to the perception of the legal order, a greater value (e.g., consent of a person to an amputation through surgery in order to save his life). As a consequence, the consent to an aesthetic surgery does not in principle lift the unlawful character of the intervention.249 When the consent does not lift the unlawful character of the behaviour of the tortfeasor, then it can be considered as a contributory fault of the person who gave it (Article 300 GCC).250 §2. NECESSITY 175. According to Article 285 GCC, in case of a state of emergency, the destruction of things belonging to another, if it became necessary in order to ward off a present danger threatening a disproportionate damage to the actor or another, does not constitute an unlawful act. Article 285 GCC only justifies the destruction of 245. P. Kornilakis, Law of Obligations: Special Part (2002), § 86 5, pp. 504, 505. 246. See Ap. Georgiades, in Georgiades & Stathopoulos (eds), GCC, 914, nos 57–64. 247. See Ap. Georgiades, Law of Obligations, General Part, § 60, p. 664, nos 36–37; id., in Georgiades & Stathopoulos, GCC, 914 no. 59; M. Stathopoulos, Law of Obligations, General Part, § 15 IV, pp. 997–998, nos 68–70. 248. P. Kornilakis, supra (fn. 245) p. 505 mentions as an example, i.a., the consent to ‘euthanasia’. 249. Ibid. 250. P. Kornilakis, supra (fn. 245), pp. 505, 506; M. Stathopoulos, Law of Obligations, General Part, § 15 IV, p. 998, no. 69; Ap. Georgiades, Law of Obligations, General Part, § 60, p. 664, no. 37.

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things in such a case; causing damage to health and corporal integrity in case of emergency is not justified, and thus the behaviour that causes such a damage continues to be unlawful.251 176. Destruction of a thing exists when the thing becomes useless, not able to fulfil its aim. From the moment the destruction is justified, a less damage to the thing is also allowed. Whether the destruction is excused or a less damage would suffice depends on what behaviour was necessary in order to ward off the present danger.252 177. If the conditions of Article 285 GCC are met, the action undertaken in order to ward off a present danger is not unlawful.253 As a consequence, a claim for damages cannot be founded. Damages can be eventually sought on the basis of Article 286 GCC,254 according to which: ‘The actor if he had himself caused the danger according to the previous article, is liable for compensation if he had himself caused the danger by fraud; in all other cases he may still be required to provide compensation. After the performance he has an indemnity action against the person who benefited, according to the provisions for the administration of another’s affair.’255 178. Articles that preclude as a principle the unlawful character of an act are also found in the GPC. In particular, Article 25 GPC on the state of emergency provides that: 1. An act committed by someone in order to prevent a danger that is present and unpreventable by any other means and that threatens the perpetrator or another person individually or their property and with no fault of the perpetrator is not unjust, if the damage caused to the other person is substantially lower in form and significance than the damage threatened. 2. The previous provision is not applied to whoever has a duty of exposure to the danger threatened. 3. The provision of Article 23 on excess of self-defense256 is also applied by analogy in the present article. 179. Also, Article 32 GPC on the State of emergency that precludes a criminal charge provides that: 251. See, among many others, from the most recent bibliography, Z. Tsolakidis, in Georgiades & Stathopoulos (eds), Civil Code, Vol. IA, Art. 285 no. 20. 252. Tsolakidis, supra (fn. 251), Art. 285 no. 22. 253. See indicatively AP 168/2011 ChrID A/2011, 688; 516/1957 NoV 6 (1958) 207; EfAth 1650/1986 EllDni 27 (1986) 1129. 254. Tsolakidis, supra (fn. 251), Art. 285 no. 29. 255. For an analysis of Art. 286 GCC, see N. Georgiades, in Georgiades SEAK I, Art. 286; Tsolakidis, supra (fn. 251), Art. 286. 256. Article 23 GPC provides that: ‘Whoever exceeds the limits of self-defense is punished with a reduced sentence if the excess was intentional, and according to the provisions related to negligence in case it happened negligently. Whoever acted that way due to the fear or the agitation that the attack caused him remains unpunished and is not imputed with the excess.’ For the reduced sentence see Article 83 GPC.

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1. A perpetrator is not charged with the act, which he performs in order to prevent a danger that is present and unpreventable by any other means and that, without his fault, threatens either personally or the property of him or a person related to him, either his ascendant or descendant or his siblings or his spouse, when the damage caused to the other person by the committed act is equivalent in form and significance to the damage threatened. 2. Provisions of §§ 2 and 3 of Article 25 are also applied in this case. §3. SELF-HELP AND SELF-DEFENCE 180. Self-help is in principle prohibited; Article 282 GCC aims at setting the conditions under which self-help is allowed and constitutes a lawful act.257 According to said article, the satisfaction of the claim with self-help and without the help of public assistance is allowed only when the delay in obtaining public assistance would render the realization of the claim significantly more difficult or impossible. Article 282 GCC is an ius cogens provision; an agreement between the parties according to which they can regulate their relations not abiding with the provisions of Article 282 GCC is not valid.258 The delay in obtaining public assistance can be due to various reasons such as the big distance from the place of the self-help or the lack of time.259 181. If the conditions of Article 283 GCC are not met, then Article 283 GCC applies,260 according to which: ‘If the conditions of the law for self-help are not met, or if the person used excessive force, he is liable to pay damages. He has the same obligation if he thought out of mistake (error) that the conditions of law exist.’261 182. As regards self-defence, Article 284 GCC262 provides that it is permitted for protecting oneself or another from a present actual attack to the actor or another person and is not an unlawful act. The existence of an attack, i.e., a human act that puts into danger a legal good of a physical or legal entity is the first basic condition for allowing self-defence according to said article. ‘Acts’ of animals cannot be considered as ‘attacks’ in the meaning of Article 284 GCC, but in such a case, Article 285 GCC on the state of emergency may apply. However, if the animal is instructed by a human being, then the act is human and self-defence is allowed.263

257. 258. 259. 260. 261.

Tsolakidis, supra (fn. 251), Art. 282 no. 3. Id., no. 4 where also (in fn. 1) reference is made to the abundant relevant bibliography. Id., no. 14. Id., no. 31. For an analysis of Art. 283 GCC see N. Georgiades, in Georgiades SEAK I, Art. 283; Tsolakidis, supra (fn. 251), Art. 283. 262. For an analysis of Art. 284 see, from the most recent bibliography, Tsolakidis, supra (fn. 251), Art. 284. 263. Id., Art. 284 no. 7.

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183. Imputability of the person who attacks is not required, as self-defence is allowed even if the perpetrator is not culpable. Self-defence is allowed against nonimputable persons.264 184. An attack is present and allows self-defence when it has started and has not been completed at the moment of the defensive act. When this happens is judged in each particular case according to the specific circumstances.265 185. Self-defence is also allowed according to Article 985 § 1 GCC when there is disturbance of or threatened eviction from possession. In such a case, the possessor is entitled to repulse by reasonable force. According to Article 22 GPC on self-defence, an act is not unjust when it is committed in a case of self-defence. Selfdefence is the necessary harm to the attacker, to which a person proceeds in order to defend himself or another person following an unjust and present attack turned against them. The necessary measure of self-defence is decided by the level of risk of the attack, by the form of the damage threatened, by the means and intensity of the attack and by other circumstances. §4. OTHERS 186. Grounds that justify a behaviour which, thus, ceases to have an unlawful character are also: – the ‘exercise of a right or the fulfilment of a duty imposed by law’ (Articles 1510, 1518 GCC, 20 GPC,266 1049 § 2 GCCP); – the ‘execution of a legitimate order’ (Article 21 GPC);267 – the case of ‘conflict of duties’ when a duty is not fulfilled in order to fulfil another duty having the same or a greater value; – the cases of Articles 304 § 4,268 308 § 3,269 367§ 1270 and 371 § 4271 GPC; 264. Id., no. 8. 265. Id., no. 22. 266. Article 20 GPC – ‘Reasons for precluding the unlawful character of the act. Apart from the cases stipulated in the GPC (arts 21, 22, 25, 304 § 4, 308 § 3, 367, 371 § 4), the unjust character of an act is also precluded when the act constitutes an exercise of a right or a performance of duty imposed by law.’ 267. Article 21 GPC – ‘Command. An act, which a person attempts in order to execute a command given to him, according to legal formalities, by the competent authority is not unjust, when law does not allow the command’s receiver to examine whether such act is legal or not. In that case, the person who gave the command is punished as an offender.’ 268. Art. 304 GPC – Abortion‘4. Abortion that takes place by the pregnant woman or with the consent of the persons named in para. 2 effected by a doctor obstetrician – gynaecologist with the participation of an anaesthesiologist in an organized nursing unit is not an unlawful act if either of the following cases occurs: a) Twelve weeks of pregnancy have not been completed. b) The pregnancy is a result of rape, seduction of a minor, incest or abuse of a woman incapable of resisting, and under the condition that nineteen weeks of pregnancy have not been completed. c)There exist indications of a severe abnormality of the foetus, found out by modern means of prenatal diagnosis, which entail the birth of a child with health issues or there is an inescapable risk to the life of the

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– the ‘resistance against anyone who attempts the violent abolition of the Constitution’ (Article 120 § 4 of the Greek Constitution);272 – the ‘acceptance on the part of the victim of the dangers’ of a certain legal behaviour or act, e.g., participation in dangerous sports;273 – the ‘management of another’s affairs’ (negotiorum gestio, Article 730 § 1 GCC) when this is permitted by law, e.g., obligatory intervention of a surgeon to the body of the patient when the latter has lost consciousness and he cannot for this reason give his consent.274

269.

270.

271.

272. 273. 274.

pregnant woman or a risk of serious and lasting harm to her physical or mental health. In this case, a relevant certification of the competent, in each case, doctor, is also required.’ Art. 308 GPC – Simple bodily harm‘1. Whoever causes bodily injury or harm to the health of another person is punished with an imprisonment of up to two years or with monetary penalty. If the injury or the harm caused to his health is totally slight, he is punished with provision of social service.3.The bodily harm of par. 1 is not unjust, when it is committed by the victim’s consent and it is not contrary to good morals.’ Art. 367 GPC‘1.The following acts are not unjust: a) adverse judgments on scientific, artistic or business projects, b) adverse phrases included in a document of a public authority concerning subjects belonging to its circle of service, as well as c) acts committed in order to execute legal duties, exercise legal authority or preserve (protect) a right or for another justified interest and d) in similar cases.’According to Art. 367 GPC, the cases mentioned in Arts. 361 ff. GPC (‘crimes against the human’s honour’) are not unlawful if they constitute manifestations for the execution of legal duties, or for the exercise of legal authority or for the protection of rights, etc. Art. 371 – Violation of professional confidentiality‘1. Clergymen, lawyers and all types of legal representatives, notaries, doctors, midwives, nurses, pharmacists and other persons, to whom some people, mostly due to their profession or quality, confide private secrets, as well as the assistants of said persons, are punished with an imprisonment of up to one year or with monetary penalty, if they disclose classified information entrusted to them or which they discovered due to their profession or quality.4. The act is not unjust and stays unpunished, if the liable party was aiming at the fulfillment of a duty or at the protection of a legal, or by another reason justified, essential interest, which is either public or his own or someone else’s and which could not be protected in a different way.’ See P. Kornilakis, Law of Obligations: Special Part I, § 86 5, p. 507. Id., p. 506. Id., pp. 506, 507.

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Chapter 3. Contributory Fault 187. The GCC provides in its Article 300 that if the injured party has contributed by his own conduct to the causing or the extent of the damage he has sustained, the court may, at its free discretion, either not award compensation or reduce its sum. Article 300 GCC applies in any case of damage caused either because of non-performance of a contract or as a result of a delictual act;275 if the person who sustained the damage has contributed to it or to its extent by his own fault, the court may either not award damages or reduce the amount due. This also applies where the person who sustained the damage omitted to avert or mitigate the damage or did not draw the attention of the debtor to the danger of the unusually big damage, which the debtor neither knew nor should have known. This provision also applies to the fault of the persons for whom the person who sustained the damage is liable. Thus, in Greek law, the recognition of the contributory negligence of the victim has as a consequence the reduction of the liability of the tortfeasor to a certain percentage. 188. It has been held accordingly in cases of violation of the Highway Code276 that a causal relationship between: (a) the behaviour of the injured party, which is in violation of the provisions of the Highway Code; and (b) the prejudice is necessary in order to speak of contributory fault; the mere violation of the provisions of the Highway Code by the injured party (i.e., the consumption of alcohol or the omission of the use of a helmet by a motorbike rider) as such does not mean that the injured party has contributed by his own conduct to the damage. It constitutes, however, an element that is going to be taken into consideration by the Court. The latter will judge whether there is a causal relationship between the particular behaviour in violation of the Code and the prejudice. 189. The Court of Cassation decided277 that it derives, from the provisions of Article 10 L. 3950/1911 on liability of car drivers, and Articles 297, 300, 330 and 914 GCC that, in case of car accidents, the existence of culpability of the driver who provoked the accident is not in principle excluded from the fact that the injured 275. Ap. Georgiades, Law of Obligations, § 60, p. 666, no. 44. 276. See, indicatively, AP 619/2000 EllDni 42 (2001) 73, 74 = NoV 49 (2001) 1010 f.; 1071/2000 EllDni 42 (2001) 392; 1128/2000 ChrID A/2001, 31 (for a brief summary (in English) of the facts and the judgments of the said decisions as well as a short commentary thereof, see E. Dacoronia, Greece, in H. Koziol & B.C. Steininger (eds), European Tort Law 2001 (2002), pp. 276–277, nos 24–28); AP 1121/2009; 1124/2009; 855/2013; 1271 and 1272/2013 all published in ISOKRATIS. 277. AP 430/2004 ChrID Δ/2004, 719; 464/2003 NoV 51(2003) 1863, 1864; 1469/2002, published in NOMOS; 447/2000 NoV 49 (2001) 836, followed by a very interesting note of Ph. Doris, NoV 49 (2001) 840 (for a brief summary (in English) of the facts and the judgments of said decisions as well as a short commentary thereof, see respectively E. Dacoronia, Greece, in H. Koziol & B.C. Steininger (eds), European Tort Law 2004 (2005), pp. 331–333, nos 18, 21, 23); (E. Dacoronia, Greece, in H. Koziol & B.C. Steininger (eds), European Tort Law 2003 (2004), pp. 215–216, nos 11–13); (E. Dacoronia, Greece, in H. Koziol & B.C. Steininger (eds), European Tort Law 2002 (2003), pp. 236–237, nos 17–20); E. Dacoronia, Greece, in H. Koziol & B.C. Steininger (eds), European Tort Law 2001 (2002), pp. 271–272, nos 8–10).

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party has contributed by his own conduct to the car accident, as long as the causal relationship between the behaviour of the car driver and the collision that caused the damage is not interrupted. 190. The victim’s concurrent fault (Article 300 GCC) is also taken into consideration when awarding damages for moral harm or pain and suffering. In case of workers’ accidents where L. 551/1915 applies, Article 16 § 4 thereof provides that the concurrent fault is taken into consideration only if the victim unjustifiably violated safety regulations for the employees, unless the employer violated the said regulations, does not apply. The reason for this position of the Court is that, even if it were to be accepted that Article 16 § 4 applies not only to damages restituted according to Law 551/1915 but according to 914 GCC as well, it is clear that Article 16 § 4 refers only to material damage, which Law 551/1915 regulates, and not to non-pecuniary damage, for which Law 551/1915 does not provide. Consequently, the contributory fault of the victim must always be taken into consideration by the Court when awarding compensation for moral harm, regardless of the fulfilment of the preconditions set in Article 16 §§ 1 and 4 of L. 551/1915. The application of Article 300 GCC requires that the victim’s culpable act or omission and the damage are causally linked. Whether such a causal link exists or has been interrupted is based on findings of fact and, therefore, cannot be subject to the control of the Court of Cassation. 191. The court, when determining the amount of money to be awarded for the compensation for moral harm or for pain and suffering according to Article 932 of the GCC, takes into consideration the fault of the tortfeasor, the concurrent fault of the person entitled to the compensation and the social and economic situation of the parties. The concurrent fault of the driver of one of the collided cars cannot be imputed, as a principle, to the passenger of the car, who got killed, unless the presuppositions of Article 300 § 2 GCC concur. Consequently, such a contributory fault is not allowed by law to be taken into consideration for the determination of the amount of money to be awarded to the family of the victim as compensation for pain and suffering. A different view violates the provision of Article 932 GCC. The Court of Cassation (full bench)278 adopted the view of the minority (two members) of its fourth Division in decision 1234/2001,279 according to which the concurrent fault is taken into consideration only for the person to whom it can be imputed. 192. A question that arises regarding minors, in order for Article 300 GCC on contributory fault to apply, is if they are liable when they contributed, with their own act or omission, to their own damage. According to the seemingly prevailing view today in the jurisprudence,280 since a minor under 10 years of age is not imputable in tort (Article 916 GCC) and is not liable for the damage he caused to another,

278. AP 13/2002 (full bench) EllDni 43(2002) 694, 695 = ChrID B/2002, 317. 279. ChrID B/2002, 318. 280. See, i.a., AP 495/2012, published in NOMOS; 731/2008 TPCL 1 (2008) 660 = ChrID Θ/2009, 33, followed by remarks of K. Christakakou (for a brief summary (in English) of the facts and the judgments of said decisions as well as a short commentary thereof, see E. Dacoronia, Greece, in K.

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in the same way, he is not liable either in the case where he contributed, with his own act or omission, to his own damage. In case of car accidents, however, damages that have to be paid can eventually be less than the normal ones, according to Article 9 L. 3950/1911 on liability of car drivers.281 193. According to another view,282 though, the concurrent fault of the victim is taken into consideration when determining the amount awarded according to Article 932 GCC for moral harm or pain and suffering even if the victim due to his age has no capacity to commit a delict. Part of an older jurisprudence (till 1990),283 as well as many Greek authors,284 who followed this view, justified this approach by making use of Article 918 GCC,285 i.e., by taking into consideration the concurrent fault of the minor below 10 years of age, if the presuppositions of said article are met. According to this view, the minor will be deprived of part of his claim for damages if this is imposed by reasons of lenience that run across Article 918 GCC (e.g., gross negligence of a child of a rich family and slight negligence of the tortfeasor who is a breadwinner). 194. Furthermore, according to the Court of Cassation,286 the Court, when considering the amount to be awarded as pain and suffering, takes into consideration the concurrent fault of the victim, even if there is non-imputability due to the age (e.g., a child below the age of 10). The concurrent fault of the person entitled to compensation for pain and suffering is also taken into consideration, e.g., the concurrent fault of the plaintiff’s father who did not sufficiently exercise the duty of supervision of his minor child. In this case, the concurrent fault of the mother or father is taken into consideration in order to reduce the pecuniary compensation of all other persons also entitled to it, such as siblings and grandparents.

281. 282. 283. 284. 285.

286.

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Oliphant & B.C. Steininger (eds), European Tort Law 2012 (2013), pp. 312–315, nos 26–30; id., Greece, in H. Koziol & B.C. Steininger (eds), European Tort Law 2008 (2009), pp. 328–330, nos 14, 16, 18, respectively); 1743/2007, published in NOMOS; Larissa Court of Appeal 675/2003 Dikografia 2004, 139. For more decisions of several Courts of Appeal following this view, see A. Kritikos, Compensation for Car Accidents, Vol. I, § 16 II, p. 303, no. 7, fn. 14. AP 1446/2009, published in ISOKRATIS; AP 1219/2015, published in NOMOS. AP 1261/2007, ChrID H/2008, 213. For a brief summary (in English) of the facts and the judgments of the said decision, see E. Dacoronia, Greece, in H. Koziol & B.C. Steininger (eds), European Tort Law 2007 (2008), p. 309, nos 47, 49–50, 52. For this jurisprudence, see A. Kritikos, Compensation for Car Accidents, Vol. I, § 16 II, p. 304, no. 7, fn. 16 For an enumeration of the said authors, see id., fn. 17, who also shares the same view. Art. 918 GCC stipulates that: ‘A person who has caused damage but is not liable according to the provisions of arts. 915–917 GCC may be obliged by the court to pay reasonable damages, after estimation of the position of the parties, if the damage caused cannot be compensated in some other way.’ AP 1261/2007, supra (fn. 282).

195–195

Chapter 4. Exemption Clauses 195. Regarding the contractual exclusion of tortuous liability, Article 332 GCC,287 which, stipulates that: ‘Any agreement excluding or limiting beforehand liability resulting from willful conduct or gross negligence is null. Any agreement excluding in advance a debtor’s liability even for slight negligence is also void, if the creditor is in the service of the debtor, or if the liability arises from the conducting of an enterprise for which prior concession by the competent authority was granted. The same also applies if the exclusion clause is included in a clause of the contract which did not constitute an object of an individual negotiation or if with the clause the debtor is discharged from his liability for the infringement of goods which derive from the personality and especially for the infringement of life, health, liberty or honor’288 refers to the exclusion of the debtor from his contractual liability. However, it is accepted in both Greek theory and jurisprudence289 that it also applies to cases of tortuous liability. Nonetheless, the exclusion clause cannot be invoked against third parties who have sustained damage.290

287. As replaced by Art. 2 § 1 L. 3043/2002. 288. For an analysis of Art. 332 GCC (in English), see M. Stathopoulos & A. Karampatzos, Contract Law in Greece (in English), Part 1, Ch. 3, p. 115, nos 158 ff. 289. Ap. Georgiades, Law of Obligations, General Part, § 23, pp. 274–275, no. 63, and § 60, p. 665, no. 43; St. Koumanis, in Georgiades SEAK I, Art. 332 no. 8; M. Stathopoulos, in Ap. Georgiades & M. Stathopoulos (eds), Civil Code, 332 no. 23; M. Stathopoulos, Law of Obligations § 6 V, pp. 414–416, nos 143–144; AP 1139/2006 ChrID ΣT/2006, 889 EfAth 10390/1979 NoV 28 (1980) 827. 290. M. Stathopoulos, Law of Obligations § 6 V, pp. 414–415, no. 143; AP 1139/2006 ChrID ΣT/2006, 889.

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Part V. Causation (Concept; Joint and Several Liability, Etc.)

§1. CONCEPT 196. A causal relation between the act and the prejudice is necessary in order for an obligation for damages to exist. In order to limit, though, the causal chain of events leading to an obligation for damages, various theories have been developed. Both case law and doctrine in Greece acknowledge that the but-for test, based on the application of causation as conceived by the natural sciences and logic, results in a major inability to limit the causal chain of events not only in the past in the process of identifying the cause, but in the future as well in the process of tracing the consequences. According to the Greek literature, if the theory of conditio sine qua non was to be accepted, the results reached would be inequitable, offending the sense of justice, as they would expand remarkably the scope of liability.291 For example, if the taxi driver fails to carry his passenger on time to the railway station, thus forcing the latter to take the next train, which derails, resulting in the death of the passenger, we would have to hold the taxi driver liable for the death of his passenger, given that had he not delayed, the passenger would not have taken the next train.292 197. The need for additional criteria for limitation led to the application of causation as a notion legally conceived. Accordingly, the conditio sine qua non theory has been abandoned regarding civil liability293 and the theory of adequate causation has been adopted since the first half of the previous century. The only value recognized in the conditio sine qua non theory is restricted to considering the but-for test as a logically necessary element for the establishment of liability and using it as a starting point when analysing the causal link.294 Necessary as a starting point but undoubtedly inadequate when by itself applicable, the conditio sine qua non theory 291. A. Litzeropoulos, Elements of the Law of Obligations, § 96; Ap. Georgiades, Law of Obligations, General Part, § 10, pp. 149–150, nos 26–29; M. Stathopoulos, Law of Obligations, § 8 IV, pp. 585–587, nos 121–122. 292. The example is given by Litzeropoulos, supra (fn. 291). 293. Ap. Georgiades, Law of Obligations, General Part, § 10, p. 150, no. 28; M. Stathopoulos, Law of Obligations, § 8 IV, p. 585–586, no. 121. 294. M. Stathopoulos, Law of Obligations, § 8 IV, p. 587, no. 123; Ap. Georgiades, Law of Obligations, General Part, § 10, p. 150, nos 28–29.

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is seldom used by the Greek Courts, which only implicitly refer rarely to it and even in those rare cases they always combine it with the causa adequata theory.295 198. Thus, both Greek theory and Court practice accept that causation is met when the unlawful act – which needs to be one of the terms that caused the harm by means of conditio sine qua non296 – is objectively adequate to cause the harm according to the ordinary course of things and common experience. In other words, an act meets the requirements as described in the causa adequata theory if it has the general tendency to cause the damage. In that way, limitation of the tortuous liability is achieved: no damage is recoverable, even though it is causally connected with an act by means of conditio sine qua non, unless it is the normal consequence, the ordinary and natural result of the wrong complained of. Contrary to the civil law, the conditio sine qua non theory is the prevailing one in the Greek penal law, where the minimization of liability is achieved on the requisite of fault.297 199. The theory of the scope of the rule of law (first developed in the German theory and known as ‘Normzwecklehre’) is also used in order to limit the liability. According to this theory, only when the provision that has been violated aims to protect private interests, then an obligation for damages is born when these interests are infringed.298 §2. JOINT AND SEVERAL LIABILITY 200. In general, when several people have collectively caused damage, the following two questions are raised, the answers of which are found in Articles 926 and 927 of the GCC: (1) if all of them are to be held liable towards the person suffering the damage; (2) how to distribute the liability among them. 201. Article 926 establishes joint and several liability in the following occasions: (a) when the damage is caused by the multiple tortfeasors’ collective act: The term ‘collective act’ used in Article 926 sentence 1 GCC has a much wider scope than the complicity of penal law, which is understood as co-deciding and co-executing the tort. In Article 926 GCC, the term ‘collective act’ is understood as including also the acts of the instigator of the tortfeasor, of the direct accessory and of the simple accessory, i.e., as including any kind of causal collaboration or participation in the perpetration of the tort and the provocation of 295. See EfAth 4172/1982 NoV 31 (1983), 822–825. 296. I. Deliyannis-P. Kornilakis, Law of Obligations: Special Part III, 171. See also Litzeropoulos, supra (fn. 291). 297. M. Stathopoulos, Law of Obligations, § 8 IV, p. 586, no. 121, fn. 182. 298. P. Kornilakis, Law of Obligations: Special Part I, 524.

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the damage, irrespectively of whether the acts of the multiple tortfeasors occurred simultaneously, successively or in parallel with the other.299 Therefore, it includes the following: – Complicity by means of co-deciding and co-executing the tort, i.e., cases where several persons act jointly and each one of them fulfils the requirements of tortuous liability.300 It has been held301 that a severe bodily injury provoked by the common dolus of the multiple tortfeasors (complicity) falls under the term ‘collective act’ in Article 926 GCC. Complicity requires the element of co-deciding the commitment of a tort. Every accomplice is liable only within the limits of the co-decision and not for the acts committed by his accomplice in excess of the co-decision, unless the excess was foreseeable to him; in case multiple tortfeasors assault and severely injure the victim, all of them are held jointly and severally liable, even if the severe bodily injury was provoked by only one of them, as long as he acted within the limits of the co-decision. The same also applies if it cannot be ascertained who of them caused the severe bodily injury. In such a case, the person who acted simultaneously or successively is entitled to prove that the outcome cannot be attributed to him. – The acts of the instigator of the tortfeasor, the direct accessory and the simple accessory (see Articles 46, 47 GPC), which are not required to be intentional; negligence suffices for the application of Article 926 GCC.302 – Cases of several persons committing the tort by acting independently and individually and without any conscious cooperation (lateral abettors).303 – Cases of necessary causality (notwendig koindizierende Kausalität), that is cases where the acts done by multiple tortfeasors are a necessary condition for the damage to be caused (in the sense that, if any of such acts had not taken place, the damage would not have been caused) but none of the multiple tortfeasors’ acts alone could have caused the damage.304 A classical example is the following: A’s factory emits harmless chemical waste and so does B’s factory. However, when these harmless chemical wastes are fused, they produce – by a chemical reaction – a poisonous substance which contaminates the river and results in fish killing. A and B are held jointly and 299. Ap. Georgiades in Ap. Georgiades & M. Stathopoulos (eds), Civil Code, Art. 926 no. 5, I. Deliyannis & P. Kornilakis, Law of Obligations: Special Part III, 218. 300. For example, A and B attack C and jointly beat him; workmen G and H omit to take preventive measures at the ditch they are digging which results at the fall and injury of V. The last example clarifies that the term ‘collective act’ in Art. 926 GCC is not restricted to intentional complicity but it includes the so-called negligent complicity as well (Georgiades, supra (fn. 299), Art. 926 no. 6; Deliyannis & Kornilakis, supra (fn. 299)). 301. AP 785/2005, ChrID E/2005, 709 (for a brief summary (in English) of the facts and the judgments of said decision as well as a short commentary thereof, see E. Dacoronia, Greece, in H. Koziol & B.C. Steininger (eds), European Tort Law 2005 (2006), p. 314, nos 25–27). 302. Ap. Georgiades, in Ap. Georgiades & M. Stathopoulos (eds), Civil Code, Art. 926 no. 7; I. Deliyannis & P. Kornilakis, Law of Obligations: Special Part I, Vol. III, 218–219. 303. E.g., a pedestrian is injured by the collision of two cars. See respectively Ap. Georgiades, in Ap. Georgiades & M. Stathopoulos (eds), Civil Code (1982), 926 no. 8, I. Deliyannis & P. Kornilakis, Law of Obligations: Special Part (1992), Vol. III, p. 219. 304. Ap. Georgiades, in Ap. Georgiades & M. Stathopoulos (eds), Civil Code, Art. 926 no. 9.

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severally liable according to Article 926 GCC, because the damage was caused by their ‘collective act’ (wide interpretation of the term). However, it has been sustained that these cases fall under Article 926 sentence a subparagraph b GCC concerning liability in parallel.305 It must be noted, however, that the discord between the scholars is strictly theoretical because regardless of where the cases of notwendig koindizierende Kausalität are placed – i.e., either in Article 926 sentence a subparagraph a GCC concerning collective act or in Article 926 sentence a subparagraph b GCC concerning liability in parallel – the actors are in any case held jointly and severally liable. However, when the act is not a necessary condition for the detrimental result (in the sense that, even if the act had not taken place, the damage would have still been caused), then there is no necessary causality, and no joint liability of the certain persons exists. – Cases where damage is caused by the simultaneous acts of multiple tortfeasors, each of which in itself would have been sufficient to cause the victim’s loss (cumulative causation). Also the breach of a contract falls under Article 926 GCC, when such a breach is the outcome of an intentional persuasion by a third person; in this latter case, even if the breach of contract is not in itself unlawful and therefore does not constitute a tort, the person who induced the contracting party to breach the contract as well as the contracting party itself are held jointly and severally liable.306 Article 926 GCC applies by analogy in cases where, even though the damage is not caused by a common act, it is maintained and worsened by the involvement of a third person (posterior complicity).307 (b) When multiple persons are held liable in parallel, e.g., the driver and the insurance company for damages caused when driving, the employer and his employees for the torts committed by the latter in the course of their employment (Article 926 GCC sentence 1 read with Article 922 GCC).308The reasons why the law establishes liability in parallel regarding the aforementioned cases vary from case to case. The employer is held liable for the torts of his employees, for he is the one who gains profit from the activity of the latter; therefore, it is only fair that he is also the one to shoulder the risks and losses stemming from the company’s activity.309 On the other hand, the insurance company is held liable so that the interests of the victim of a car accident are more highly protected in 305. See respectively M. Karasis, Joint and Several Debt, 1990, 279, fn. 87a, 282. 306. For a short analysis of the field of application of Art. 926 GCC, see, i.a., E. Nezeriti, note under AP 785/2005 ChrID E/2005, 709. 307. Ap. Georgiades, in Ap. Georgiades & M. Stathopoulos (eds), Civil Code, Art. 926, no. 12; I. Deliyannis & P. Kornilakis, Law of Obligations: Special Part III, 220. For example, the person who hides stolen goods is obviously not causally connected with the theft, but he is responsible for the preservation of the harm already caused; thus, he is held jointly and severally liable according to Art. 926 GCC applied by analogy. Seen by the point of view of the victim, it is only fair that not only the thief but also the one who hides the stolen goods also is to compensate the victim because the latter’s property is damaged by both acts. 308. Ap. Georgiades, in Ap. Georgiades & M. Stathopoulos (eds), Civil Code, Art. 926, no. 16. 309. M. Stathopoulos, Law of Obligations, General Part, § 7 III, pp. 429–430, no. 19.

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that he is given the right to seek the restoration of the damage from an additional solvent person, the insurer, the latter being held jointly and severally liable along with the owner, possessor and driver of the car. It has to be mentioned here that compulsory liability insurance has to be provided in Greece by either the automobile owner or the possessor of the car (L. 489/1976,310 Article 2 § 1). In Greek practice, it is the automobile owner who usually chooses the insurance company, negotiates the terms of the contract with the latter and signs the contract. However, the insurance contract covers not only the owner’s liability but the possessor’s and the driver’s liability as well (L. 489/1976, Article 6 § 1). In case of a car accident, the automobile owner, the possessor, the driver as well as the insurance company are all held jointly and severally liable.311 Article 6 § 3 L. 489/1976 explicitly provides that the insurance company is liable towards third persons for the damage they suffered from the use of the car, while Article 10 § 1 thereof provides that third persons are entitled to directly seek compensation from the insurer, against whom they can file an action. As already mentioned, the aforementioned provisions of L. 489/1976 attain to add one more person as an additional liable person on top of the already existing ones (car owner, possessor and driver), from whom the person who suffered the damage is entitled to seek compensation. Therefore, under Greek law, the insurer’s role is not only to insure the tortfeasor; the insurer is regarded as being personally liable himself. (c) When more than one person acted either simultaneously or successively and it is impossible to determine whose act caused the damage (Article 926 GCC sentence 2 GCC): Article 926 GCC sentence 2 GCC is applicable provided that the following requirements are met:312 (1) Acts of more than one person. It is of no interest whether the acts were simultaneous or successive; if they were of the same kind or not; if they were based on a prior accordance between the wrongdoers or not. (2) Each one of the several persons’ acts is required to be independently adequate to have caused the damage, i.e., is required to be regarded as a potential cause of the wrong complained of. Should one of the two or more possible tortfeasors prove the lack of adequate causation between his act and the damage, he is excluded from liability. (3) Each one of the several persons’ acts is required to be tortuous based on fault by means that it would give rise to liability, could causation be proven. However, it is accepted that Article 926 GCC also applies by analogy to strict liability. (4) It must be impossible to ascertain whose author’s action did in fact lead to the damage or the extent to which the latter was caused by each one of the tortfeasors. 310. As in force after its subsequent amendments and its codification with P.D. 237/1986. For a detailed analysis of said law, see A. Kritikos, Compensation for Car Accidents, Vol. II. 311. Id., Vol. I, § 12, p. 225, no. 1. 312. Ap. Georgiades, in Ap. Georgiades & M. Stathopoulos (eds), Civil Code, Art. 926, nos 20 f.; I. Deliyannis & P. Kornilakis, Law of Obligations: Special Part III, 223 f.

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202. Conclusively, according to Article 926 sentence 2 GCC, each one of the several potential tortfeasors is held jointly and severally liable for the damage if it cannot be ascertained whose action or to what extent caused the damage. When the probability of having caused the damage is the same for all the possible authors, Article 926 GCC is applicable. In such a case, as far as the relationships between the several possible tortfeasors inter se and their right of recourse against each other (Article 927 GCC) are concerned, the damage is equally distributed among them. If the causal relationship of the behaviour of one or more tortfeasors with the damage suffered is fully established, whereas such causal relationship cannot be fully established as far as the rest of the tortfeasors are concerned, there is no liability of the latter.313 203. The reason why Greek law establishes joint and several liability in cases of alternative causation314 is that it is considered unfair for the person who suffered the damage to be deprived of compensation simply because he cannot prove whose action caused the damage. It is also considered fair for the several actors to be held all jointly and severally liable because the aforementioned difficulty in proof originates from their own sphere and is founded on the risk of damage caused by each one of them.315 Therefore, in cases of alternative causation, the law – in order to assist the victim in establishing his claim – creates a presumption that the acts of the possible tortfeasors are causally linked with the damage. However, the presumption is rebuttable: each one of the possible tortfeasors may try to prove that his action did not cause the damage; should he succeed, he is not held liable. Conclusively, the law reverses the burden of proof as far as causation is concerned so as to offer the claimant a way out of the difficulty in proving causation. 204. Cases where damage is inflicted by several successive acts or events, each one of which would have caused it, are known as posing the problem of ‘hypothetical causality’.316 The matter is greatly disputed in scientific circles. According to the prevailing view in Greek legal literature,317 the second act does not annul the liability for the damage of the first one. However, it has also been maintained that hypothetical causality should be taken into consideration and lead to the exemption of the first tortfeasor.318 Other writers have argued that damages should be reduced

313. M. Stathopoulos, Law of Obligations, General Part, § 15 VII, pp. 1029–1031, nos 110–111; AP 1685/2009 ChrID I/2010, 523 = NoV 58 (2010) 722, 909. 314. P. Filios, Law of Obligations, Special Part, Vol. II, § 182a fn. 1, p. 382; M. Stathopoulos, Law of Obligations, General Part, § 15 VII, p. 1029, no. 110, use the term ‘possible causation’. 315. P. Kornilakis, Law of Obligations, Special Part (2000), 397. 316. See respectively M. Stathopoulos, in Ap. Georgiades & M. Stathopoulos (eds), Civil Code, 297–298 no. 81; E. Kounougeri-Manoledaki, The Problem of Hypothetical Causality in the Law of Damages, Scientific Annual of Armenopoulos 2 (1981), 185 ff. 317. See, i.a., I. Spyridakis & E. Perakis (eds), Civil Code, Vol. B/1, 297 no. 2; A. Tousis, Law of Obligations: General Part, 1973, § 36, 158. 318. A. Argyriadis, Legal Issues, Vol. A, 1978, 242.

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with reference to equitable criteria319 and bona fides.320 Last – but not least – it has been observed that the first tortfeasor should be held liable for the damage caused until the posterior event occurs.321 205. Moreover, Article 927 GCC provides that if one of the multiple tortfeasors totally compensates the person suffering the damage, he is given the right of recourse against the rest of them. In such a case, the liability among the multiple tortfeasors is determined by the Court, depending on each one’s contribution to the fault, and if such a contribution cannot be ascertained, the damage is equally distributed among them. 206. According to the Greek legal literature,322 the provision of Article 926 sentence 2 GCC does not apply when the damage was caused by: a) a faulty behaviour and hazard (or force majeure) and b) a faulty behaviour of a tortfeasor and the faulty behaviour of the person who sustained the damage himself;323 in such cases, the solutions given in Greece will be based on the principle ‘all or nothing’ that regulates the Greek law of damages. If the causal link is proven, full damages are to be paid to the plaintiff and if not, no damages are awarded. However, as it is difficult to prove causation, it is argued that the courts in Greece decide based on the feeling of equity, which means that they have the tendency to favour the plaintiff, as, for example, in car accident cases when damages are to be paid by the insurance company, a tendency which is not fair to the defendant.324 207. To avoid this unfairness, it has been recently proposed also in Greece that where causation is likely but not certain, the amount of compensation should correspond to the degree of the probability of the contribution to the damage325 and that this solution can be adopted not only de lege ferenda326 but also de lege lata by applying by analogy Article 926 sentence 2 GCC in combination with Article 300 GCC on concurrent fault.327 This view contravenes another view expressed already 319. 320. 321. 322. 323.

324. 325. 326. 327.

Litzeropoulos, supra (fn. 291), § 98b. K. Fourkiotis, Law of Obligations: General Part, 1964, § 27 IV 2, 334. Ap. Georgiades, Law of Obligations, General Part, § 10, pp. 153–154, nos 35–36. See Ap. Georgiades, in Ap. Georgiades & M. Stathopoulos (eds), Civil Code, Art. 926 no. 21; M. Karasis, Joint and Several Debt, 346–359; P. Kornilakis, Law of Obligations, Special Part, 578; A. Kontogianni, Contributory Negligence in Civil Law, 2006, § 20 nos 25–27. Cases of concurrence of a faulty behaviour and hazard (or force majeure) frequently appear, as it is also mentioned in the article of E. Zervogianni, Ambiguous Issues of Alternative Causation. Concurrence of the act of a third person with hazard or with an act of the victim, EllDni 51(2010) 949–963, in the field of medical liability when it cannot be ascertained whether the damage was due to medical malpractice or would be suffered in any case, independently of the malpractice. Zervogianni, supra (fn. 323). Id. See also E. Zervogianni, An Alternative Approach of Cases of Uncertain Causation, Digesta 2006, 347 f. and in particular pp. 349 f. Id. Seemingly of the same view, according to E. Zervogianni, also Kl. Roussos, Causation and Founding of Liability According to Arts 914, 71 GCC or According to Arts 914, 922 GCC (Legal Opinion), EllDni 35 (1994) 1493, who accepts the application of Art. 926 GCC by analogy when there is uncertainty about the causal link.

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twenty years ago,328according to which such a solution cannot be accepted de lege lata; such an acceptance would go beyond the aim of the legislator, as manifested in Article 926 GCC. 208. The above-mentioned approach, i.e., that the amount of compensation should correspond to the degree of the probability, has been proposed in Greece first in cases of loss of a chance,329 where it has been noted in the Greek legal literature330 that possibilities are statistically estimated at a certain percentage or frame of percentages. If this percentage is not considered sufficient for the acceptance of probability ‘in the usual course of events’ as stipulated by Article 298 sentence b’ GCC,331 according to the Greek law, normally no compensation is due, although some possibilities – however slight – do exist. On the other hand, if it is accepted that there is a probability as required by Article 298 sentence b’ GCC, full compensation is awarded as if future profit was certain to be gained although it is only probable. It has been argued accordingly that both solutions, based on the principle ‘all or nothing’ regulating the Greek law of damages, appear to be unjust and that de lege ferenda the best way to deal with ‘loss of a chance’ would be for the law to make a provision for awarding damages which would, however, be reduced according to the height of the percentage of probabilities, e.g., if probabilities are estimated at 30%, it should be awarded as damages 30% of the total damage presented as probable. It is argued here332 that, de lege lata, Article 298 sentence b’ GCC could be applied, but damages awarded should be reduced by resorting to Article 288 GCC and the principle of good faith expressed therein. §3. RECOURSE AMONG SEVERAL TORTFEASORS 209. The answer to the issue of how liability is to be distributed among the multiple tortfeasors is provided by Article 927 GCC which stipulates that if one of the multiple tortfeasors totally compensates the person suffering the damage, he is given the right of recourse against the rest of them. In such a case, the liability among the multiple tortfeasors is determined by the Court, depending on each one’s contribution to the fault, and if such a contribution cannot be ascertained, the damage is equally distributed among them.

328. M. Karasis, Joint and Several Debt, 358, 359. 329. For issues related to the loss of a chance, see M. Stathopoulos, Law of Obligations, § 8 III, pp. 552–553, no. 90; K. Fountedaki, The Problem of Causation in Medical Liability, EllDni 35 (1994) 1236; M. Kanellopoulou Boti, The Offence Against the Chance as Damage to Patrimony or Moral Harm, KritE 2003/2, 253–307. 330. M. Stathopoulos, Law of Obligations, General Part, § 8 III, pp. 552–553, no. 90. 331. Article 298 GCC reads as follows: ‘Damages include the decrease in the existing property of the creditor (positive damage), as well as the loss of profit. That which can be expected as a probable profit in the usual course of events or by reference to the special circumstances and particularly to the preparatory measures taken shall be reckoned as loss of profit.’ 332. M. Stathopoulos, General Part, § 8 III, p. 553, no. 90.

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210. From the combination of Article 926 and Article 927 GCC, it derives that, in case of multiple tortfeasors, joint and several liability is established, and the person who suffered the damage may demand compensation from either one of them, without them being entitled to invoke such a concurrent fault as a basis for the reduction of damages.333

333. AP 1094/2004, published in NOMOS (for a brief summary (in English) of the facts and the judgments of said decision as well as a short commentary thereof, see E. Dacoronia, Greece, in H. Koziol & B.C. Steininger (eds), European Tort Law 2004 (2005), pp. 331–333, nos 17, 20, 22). Same as AP 13/2002 (in full bench) EllDni 43 (2002) 694, 695 = ChrID B/2002, 317 (for a brief summary (in English) of the facts and the judgments of said decision as well as a short commentary thereof, see E. Dacoronia, Greece, in H. Koziol & B.C. Steininger (eds), European Tort Law 2002 (2003), pp. 246–247, nos 60–62).

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Chapter 1. General Principles 211. The tortfeasor is obliged to compensate for all damage, pecuniary and nonpecuniary one, sustained by the victim. As a principle, only direct damage is to be compensated. Pecuniary damage comprises not only positive damage but also lost profits. As a rule, the compensation is a monetary one and compensation in natura can be sought only as an exception. The ‘theory of difference’ is used in order to calculate damages; i.e., the current condition of the victim’s property is compared to the one he would have had without the event that caused the damage, and the difference constitutes the amount that has to be paid by the tortfeasor. Compensation for non-pecuniary damage is given in order to console the grief caused to a person when his non-material goods are offended.

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Chapter 2. Kinds of Damage §1. INDIVIDUAL AND COLLECTIVE DAMAGE 212. Individual damage is compensated according to the Greek legal system which does not know class actions. Only according to Article 10 of L. 2251/1994 for the protection of the consumer a collective action is recognized in the case of consumer unions with at least five hundred members, which can file an action for the satisfaction of the harm suffered by the consumers from defective products or services, abusive general terms included in contracts, fraudulent or unfair advertising. §2. DIRECT AND INDIRECT DAMAGE 213. Direct damage (in Greek , amesi zimia) is provoked directly by the infringement of rights or interests protected by the law, whereas indirect dam, emmesi zimia) is constituted in regard to further age (in Greek unfavourable consequences to the victim’s entire property.334 214. Difficulties appear to arise in regard to the question of whether the victim can seek compensation not only for the direct damage but for the consequential damage as well. The damage is considered to be consequential when it is not directly caused by the initial harm but by other events which need to be connected to the initial harm.335 For example, in case of a car accident, physical injuries constitute the direct damage (they are directly caused by the accident), whereas wages lost for the victim due to hospitalization required for the physical injuries’ treatment are considered as consequential damage (the lost wages have come about as a result of the hospitalization, the latter only being directly caused by the accident). In other words, immediate damage is provoked directly by the infringement of rights or interests protected by the law, whereas consequential damage is constituted in regard to further unfavourable consequences to the victim’s entire property.336 The differentiation between direct and consequential damage offers an argument against the sufficiency of the conditio sine qua non theory in establishing causation: it has been pointed out337 that there is a need for some limitation so that liability is not extended to those more distant consequences but remains within an acceptable framework; the conditio sine qua non theory – as conceived by the natural sciences and reason – does not place a sufficient limitation on the extent of liability, because it accepts the condition of a causal relationship even for the most distant and fortuitous consequences. It is difficult to establish a cut-off point in the series of the 334. M. Stathopoulos, in Ap. Georgiades & M. Stathopoulos (eds), Civil Code, 1979, Arts 297–298 no. 44; P. Kornilakis, Law of Obligations: Special Part I, 519. 335. Ap. Georgiades, in Ap. Georgiades & M. Stathopoulos (eds), Civil Code, Art. 914 no. 82. 336. M. Stathopoulos, in Ap. Georgiades & M. Stathopoulos (eds), Civil Code, 297–298, no. 44; I. Deliyannis & P. Kornilakis, Law of Obligations: Special Part, 1992, Vol. III, 169. 337. M. Stathopoulos & A. Karampatzos, Contract Law in Greece (in English), Part 1, Ch. 6, pp. 207–208, no. 310.

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causally linked events in the future in tracing the direct and indirect effects occurring by the logical concept of causation. Additional criteria for limitation are needed; those are provided by the theory of causa adequata. Therefore, the indirect damage is compensated when it is causally linked – by means of causa adequata – with the original harm, i.e., if the initial harm had the tendency, the capability of leading to it in accordance with the normal course of events. If the consequences following an initial injury are so extreme that they cannot be considered natural and common results of the original injury, they are not compensated. §3. PECUNIARY AND NON-PECUNIARY LOSSES 215. The Greek legal system recognizes both pecuniary and non-pecuniary damage. The damage a person suffers when his material assets are harmed is called , periousiaki zimia), while the grief pecuniary damage (in Greek caused to a person when his non-material goods are offended is called either ‘nonpecuniary damage’ or ‘moral harm’. When satisfaction for moral harm is allowed, then also satisfaction for the pretium affectionis, i.e., for the sentimental value the damaged object has for its owner, can be sought, as long as the said pretium affectionis constitutes in itself the moral harm or renders more intense the moral harm caused by the offence of another good.338 ‘Pain and suffering’ (in Greek ) is a form of moral harm experienced by the family of a deceased person. §4. PURE ECONOMIC LOSS 216. The concept of ‘pure economic loss’, mainly recognized in Germany and in common law systems,339 is not a concept commonly used in the Greek legal system. Greece does not belong to the legal systems that consider pure economic loss as an autonomous form of damage. In order to answer to the question of whether damages can be given for the so-called pure economic loss, the Greek legal system uses the distinction between direct and indirect damage.340 The offence of a legal good (such as life, health, ownership, etc.) may lead to damage to property as a whole; there can be, however, cases, where damage to property as a whole can exist

338. M. Stathopoulos, Law of Obligations, General Part, § 8 III, pp. 568–569, no. 100. See also A. Litzeropoulos, ErmAK, Vol. B, Art. 298 no. 29; P. Zepos, Law of Obligations, General Part, Vol. I, 259 fn. 5. 339. On the notion of pure economic loss, see M. Bussani & V. Palmer, The Notion of Pure Economic Loss and Its Setting, in M. Bussani & V. Palmer (eds), Pure Economic Loss in Europe, 2001, pp. 3 f. See also E.K. Banakas, Tortious Liability for Pure Economic Loss: A Comparative Study (in English), 1989; K. Christodoulou, Pure Economic Loss, Aspects of an Anglosaxon Legal Issue under Greek Law (in English), RHDI 1998, 599 f. 340. See M. Stathopoulos, Law of Obligations, General Part, § 8 IV, pp. 580–581, no. 114.

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even if no certain legal good is infringed.341 Whether damages for this (indirect) damage can be sought depends on whether a causal link of the particular damage to the unlawful and culpable character of the act that caused the damage exists.342 What is more problematic is whether damages can be sought by third persons, other than the person who sustained the damage to his legal good, for damage to their property as a whole. These persons are characterized as indirectly damaged. According to Greek theory and jurisprudence, only direct victims can seek damages; third persons, who have sustained an indirect damage can only exceptionally seek damages, as, e.g., in the cases provided in Article 928 sentence 2 and Article 929 sentence 2 GCC.343 It is said, however, that this generalization is not justified; the causal link must also be used here as a criterion in order to decide whether damages to third persons should be paid and that the latter should not be excluded a priori just because they are characterized as indirect victims.344 §5. ACTUAL AND FUTURE DAMAGE (LOST PROFITS) 217. The sustained damage can be either present or future. Present is the damage already occurred as a consequence of the act that caused it. Future is the damage that is foreseen as possible to occur in the future, according to the usual course of things, as a necessary consequence of the situation that has been created with the unlawful act and it is possible to determine it at the time of the decision either at once or at time periods.345 218. The division of damage into actual or concrete (in Greek , sygekrimeni) and abstract (in Greek , afirimeni) is related to the manner and criteria of its calculation. 219. Pecuniary damage is further distinguished in positive damage (damnum , thetiki zimia), i.e., the reduction of the existing emergens, in Greek estate of the person who sustained the damage (usually a reduction of said person’s assets but also an increase in the liabilities, e.g., the incurring of new debts), and negative damage or loss of profit or lost profits (lucrum cessans, in Greek , arnitiki zimia or diafigon kerdos), i.e., the prevention to increase his assets.346 220. In order to avoid any doubt that also lost profits (lucrum cessans) constitute compensable damage, the Greek legislator explicitly provides in Article 298 341. A. Liakopoulos, Civil Liability for Pure Economic Loss in Greece (in English), RHDI I/1998, p. 67; Stathopoulos, supra (fn. 340); Zervogianni E., Pure Economic Losses of Third Persons, KritE 2003/1, 205 f. 342. M. Stathopoulos, Law of Obligations, General Part, § 8 IV, pp. 578–579, no. 111. 343. For more details, see infra, Part VI, Ch. 4, no. 235 ff. 344. M. Stathopoulos, Law of Obligations, General Part, § 8 IV, p. 582, no. 116. 345. P. Kornilakis, Law of Obligations, Special Part I, § 88 7 II 4, 519. 346. See M. Stathopoulos & A. Karampatzos, Contract Law in Greece (in English), Part 1, Ch. 6, p. 205, no. 305.

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sentence 1 GCC that ‘damages include the decrease in the existing property of the creditor (positive damage), as well as lost profits’. However, though, as a rule, positive damage already exists, and thus, normally, can be easily proved, lost profits, i.e., the profits that would have been made, if the damaging event had not taken place, are based on an assumption and assumptions are not characterized by certainty and, even more, cannot be easily proved. To facilitate proof and to put some limitations, the Greek legislator dictates in Article 298 sentence 2 GCC that ‘that which can be expected as a probable profit in the usual course of events or by reference to the special circumstances and particularly to the preparatory measures taken is presumed as loss of profit’. This means that for loss profits to be compensated, they should have been foreseen in advance, i.e., at the time of the damaging event, by an ordinary, prudent person on the basis of objective criteria.347 According to the Court of Cassation,348 loss of profit constitutes damage, which is about to take place in the future, and it is necessarily connected to the hypothetical course of events. It does not share the certainty of sustained damage. The proof of the lost profit is a much more difficult task for the injured party compared to positive damage, so the law is content with the proof of mere probability. Thus, the provision of Article 298 sentence 2 GCC is both of a substantial character, as it determines the elements of the claim for damages, as well as of a procedural character, as it allows the judge to be satisfied with mere probability. However, if, following the assessment of the evidence, it derives, according to the Court, that the plaintiff’s damage was not probable but that it could just possibly occur, then the lawsuit is rejected as substantially unfounded; this means that the action was filed prematurely and that no res judicata is being created, as there is no definite judgment on the subject matter. Accordingly, the decision of the Court on whether there is probability according to the usual course of events about the existence or not of lost profit cannot be subject to the control of the Court of Cassation, as it refers to the estimation of how things evolve. 221. According to the Court of Cassation,349 it derives from the combined Articles 929 and 298 GCC that the person who has sustained an injury has the right to file an action for the loss of future earnings because, due to his reduced capacity of work, that comes as a consequence of the personal injury, he will lose income from his work, which, according to the usual course of things, he would exercise in the future, if he had full capacity to work. A certainty for that is not required; a probability, according to the usual course of things, suffices. This probability of loss of future earnings must be deduced from the particular circumstances, in particular from the measures taken. The injured person who files a claim for loss of future earnings must display in his action concrete facts which justify that his future damage is likely to occur and which will enable the judge to consider the possibility of 347. See, i.a., M. Stathopoulos, Law of Obligations, General Part, § 8 III, pp. 544–545, nos 86–87; M. Stathopoulos & A. Karampatzos, Contract Law in Greece (in English) Part 1, Ch. 6, p. 205, no. 305. 348. AP 1107/2015, published in NOMOS; AP 2076/2006 published in ISOKRATIS; AP 1306/2003, EllDni 46 (2005) 81. 349. AP 994/2011 NoV 60 (2012) 644.

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the occurrence of such a future damage; if from the facts displayed the future damage is presented not as probable but as merely possible, then the action is not legally based and does not found a claim for damages. In order for damages for future damage to be awarded, the future damage should be able to be determined at the time of the decision, either as a lump sum or as a periodical rent. When, however, the damage is not simply future but its existence also depends on other imponderable factors which eventually may occur in the future but their occurrence is impossible to be foreseen according to the usual course of things, then future damages are not awarded, as premature, and are only then awarded when all the conditions for this future damage are met. Accordingly, even if the injured party does not exercise at the time of the unlawful act a professional activity because he is a minor, he has, from that time, the right to file an action for the loss of future earnings from such professional activity, provided that it is foreseen with probability, and according to the usual course of things, that he would have exercised in the future this activity if the unlawful act and his injury had not taken place.350 §6. OTHER COSTS (COSTS OF ASSESSING DAMAGE AND LIABILITY; COSTS IN OBTAINING JUDICIAL OR EXTRA JUDICIAL PAYMENT, ETC.) 222. Articles 173–193 GCCP regulate how the expenses that are related to the litigation are to be borne by the litigants. Said expenses are characterized as judicial, encompassing the Court expenses (payable to the State) and extrajudicial, encompassing the amounts payable to lawyers, bailiffs, etc., as fees and expenses.351 The claim for the payment of the expenses is a claim of substantive law, which depends, however, on the fulfilment of the conditions set by the abovementioned relevant provisions of GCCP.352 According to the jurisprudence,353 said expenses cannot be recuperated on the basis of Article 914 GCC, as long as they can be claimed on the basis of the above-mentioned articles of the GCCP. §7. MITIGATION OF DAMAGES 223. As mentioned above,354 the GCC provides in its Article 300 that if the injured party has contributed by his own conduct to the extent of the damage he has 350. AP 549/2002ChrID B/2002, 402, 403 (for a brief summary (in English) of the facts and the judgments of said decision as well as a short commentary thereof, see E. Dacoronia, Greece, in H. Koziol & B.C. Steininger (eds), European Tort Law 2002 (2003), pp. 239–240, nos 30–33). 351. See, i.a., G. Orfanidis, Introductory Remarks to Arts 173–193 GCCP, in K. Kerameus & D. Kondylis & N. Nikas (eds), Code of Civil Procedure, 2000, p. 397. 352. Id., p. 398. 353. AP 1345/2008, published in NOMOS (for a brief summary (in English) of the facts and the judgments of said decision as well as a short commentary thereof, see E. Dacoronia, Greece, in H. Koziol & B.C. Steininger (eds), European Tort Law 2008 (2009), pp. 324–325, nos 2–4; EfAth 6590/2003 EpiskEmpD 2004, 162; 4027/1978 (Arm 33 (1979), 21; Piraeus Court of Appeal 1290/ 1996 Epitheorissi Dikaiou Polykatoikias (Review of Condominium Law, EDPol) 1998, 176; Crete Court of Appeal 133/1971 Arm 25 (1971) 1001. 354. See supra, Part IV, Ch. 3, no. 187 ff.

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sustained, the court may, at its free discretion, either not award compensation or reduce its sum. Article 300 GCC applies in any case of damage caused either because of non-performance of a contract or as a result of a delictual act. 224. On the other hand, the event that caused the damage may, in parallel to the damage, entail benefits to the person who sustained the damage. The question that arises is whether said benefits are to be deducted from the amount of damages to be paid by the tortfeasor, i.e., whether the tortfeasor is freed from the payment of any damages in case the benefits are equal or more than the damage sustained. Given that aim of the Greek Tort Law is to help the victim annihilate the detrimental consequences of the damage-causing event, not to make him richer or to punish the tortfeasor, it prevails355 that the benefits must be deducted from the damage. This principle, however, must not be without exceptions, as the deduction of the benefits may, in some cases, prove unjust to the victim.356

355. See, i.a., A. Kritikos, Compensation for Car Accidents, Vol. I, § 15 III, p. 290 ff., nos 12 ff. See also AP 1498/2008, published in NOMOS (for a brief summary (in English) of the facts and the judgments of said decision as well as a short commentary thereof, see E. Dacoronia, Greece, in H. Koziol & B.C. Steininger (eds), European Tort Law 2008 (2009), pp. 325–326, nos 5–8). 356. See in details M. Stathopoulos, Law of Obligations, General Part, § 9 III, pp. 662 ff., nos 48 ff.

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Chapter 3. Assessment and Compensation of Damages §1. OBJECTIVE VERSUS SUBJECTIVE 225. It is common ground in the Greek legal literature357 and jurisprudence358 that it derives from the notion of damage as well as from the spirit and the goal of tort law that the victim should get damages for his whole actual damage.359 The damage of another person, even of an imaginary, ordinary person, is irrelevant. As a consequence, a concrete calculation of the damage takes place in which also the further damage sustained by the particular victim is taken into consideration, indifferently of whether another person would have sustained such further damage or not (subjective value). §2. CONCRETE VERSUS ABSTRACT 226. It has to be noted, however, that it is being accepted360 that only purely economic criteria are taken into consideration when proceeding with the said concrete calculation of the damage. If and to which extent the victim has ‘felt’ the damage are judged as completely imponderable and changeable factors that cannot be of essence. 227. The concrete damage is taken into consideration even if it is greater than the abstract one. It is argued whether the same applies when the concrete damage is less than the abstract one.361 §3. METHODS OF ASSESSING DAMAGES 228. As regards the issue of what is the time for the calculation of damage, the prevailing in the Greek jurisprudence view is that the time of the hearing of the 357. See, i.a., P. Kornilakis, Law of Obligations: Special Part I (2004) 594; M. Stathopoulos, Law of Obligations, General Part, § 8 III, pp. 557–559, nos 94–97; M. Stathopoulos & A. Karampatzos, Contract Law in Greece (in English) p. 206 no. 307. 358. See, indicatively, AP (full bench) 807/1973 NoV 22 (1974) 321; AP 1286/1976 NoV 25 (1977) 906; EfAth 5808/2002 DEE 9 (2003) 1088. 359. In Greek law of damages, the principle of ‘all or nothing’ (no compensation or full compensation) applies. As in German law, also in Greek law, the judge freely assesses the evidence, but he must firmly believe that the facts exist in order to base his judgment on these facts. Full forensic evidence is required by the Greek Code of Civil Procedure (GCCP). For this rule, in particular in relation to the issue of causality, see P Kargados, Thoughts on the Criteria of Proof of Causality, NoV 36 (1988) 1549 f. Both under contract and tort, from the moment the judge is convinced for the damage occurred, the damages to be paid cover the whole damage suffered (positive damage and loss of earnings). 360. See, i.a., M. Stathopoulos, Law of Obligations, § 8 III, pp. 517–518, no. 53 and pp. 558–559, no. 95. 361. For the said issue see M. Stathopoulos, Law of Obligations, General Part, § 8 III, pp. 558–559, no. 95.

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action for damages at the Court is the crucial time and not the time the damaging event occurred.362 Accordingly, the Court of Cassation held that it derives from Articles 914, 297 and 298 GCC that the person who culpably and unlawfully completely destroys a thing belonging to somebody else is liable to pay damages to the owner, who is entitled to seek compensation for the actual loss at the objective value of the thing at the time of the hearing of the action for damages at the Court.363 It is sustained in legal doctrine though that the prevailing in the jurisprudence view is feeble and that a better and more compatible to the principles of the law of damages solution is to choose as basis for the calculation of damage the time the damaging event occurred.364 229. In case of the destruction of a thing that is not new, if damages are given in money, the damage must be calculated on the basis of the value of the thing at the same condition and is not analogous to the required expense in order to buy a new one. Otherwise, the person who sustained the damage would enjoy a benefit which is contrary to the notion of difference and the governing general principle of putting the debtor in the position he was in before the detrimental act.365 §4. EQUITABLE LIMITATION OF DAMAGES 230. Where the person causing harm lacks the necessary physical or mental capacity due to age, disability, insanity or the like, the Greek legal order, as mentioned above, negates fault (Articles 915 to 917 GCC). According to Article 918 GCC, however, a person who has caused damage but is not liable according to the provisions of Articles 915–917 GCC may be condemned by the court to reasonable damages, after estimation of the position of the parties, if the damage caused cannot be compensated in some other way, e.g., from the supervisor of the victim who is a person under age or a person of age placed under judicial assistance (Article 923 GCC) or from the insurance company to which the person who sustained the damage is eventually insured. The Court is given this discretion out of lenience to the person who sustained the damage.366 231. Also, in the case of state of emergency, though the destruction of things belonging to another, if it became necessary in order to ward off a present danger threatening a disproportionate damage to the actor or another is not an unlawful act (Article 285 GCC), the actor may nevertheless be obliged to pay reasonable damages according to the circumstances (Article 286 GCC). 362. For the time of calculation of the damage and the relevant jurisprudence, see, i.a., P Kornilakis, Law of Obligations (Special Part) I, 2002, pp. 603 f.; M. Stathopoulos, Law of Obligations, General Part, § 9 I, pp. 638 ff., nos 18 f. 363. AP 839/2012, published in NOMOS. 364. K. Saitakis, Time of Calculation of Damage in Tortuous Liability, NoV 60 (2012), 1691–1711. 365. AP 1006/1977 NoV 26 (1978) 907; 839/2012, supra (fn. 363). 366. See Ap. Georgiades, in Georgiades & Stathopoulos (eds), 918 nos 10 f.; P. Kornilakis, Law of Obligations: Special Part I, § 87 6 II 1, p. 515.

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§5. METHODS OF PAYMENT 232. Given that Articles 914 and 919 GCC do not mention the way according to which damages should be paid, it should be accepted that Article 297 GCC applies. Thus, the compensation should be paid in money. However, if any specific circumstances, according to sentence b’ Article 297 GCC apply, the Court may, taking into consideration these circumstances, award in natura compensation367 which may consist of any act whatsoever, such as the obligation of the tortfeasor to alienate to the person who sustained the damage a right, or to establish or extinguish an obligation, the lack or existence of which may constitute an unlawful act according to Article 919 GCC and Article 949 GCCP.368 I. Lump Sum 233. The rule is that a lump sum is given to compensate the damage. Under certain conditions, compensation in natura can be sought and given. II. Annuities 234. According to Article 930 §§ 1 and 2 GCC, damages under 928 and 929 GCC for the future shall be made by payment of monthly instalments. If a serious reason exists, a lump sum can be awarded as damages. The person liable to pay damages may according to the circumstances be obliged to provide insurance. According to Article 930 § 3 GCC, the claim for damages shall not be precluded on the grounds that another person is liable to indemnify or to maintain the victim.

367. For the subject matter, see, among many others, P. Kornilakis, § 99 1 I 2, p. 594; M. Stathopoulos, Law of Obligations, § 8 III, pp. 536 ff., nos 76 ff. and the monography of E. Zervogianni, The Restoration of the Status Quo Ante as a Form of Damage Compensation (Athens 2006), very shortly presented (in English) by E. Dacoronia in H. Koziol & B. Steininger, European Tort Law 2006 (2007), p. 268 no. 84. 368. AP 33/2009 ChrID Θ/2009, 707 followed by a comment of D. Flambouras (for a brief summary (in English) of the facts and the judgments of said decision as well as a short commentary thereof, see E. Dacoronia, Greece, in H. Koziol & B.C. Steininger (eds), European Tort Law 2009 (2010), pp. 274–276, nos 17–20).

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Chapter 4. Personal Injury and Death 235. As stated in the Greek jurisprudence,369 it is deduced from Articles 914, 297 and 298 GCC370 that only the person who has been directly prejudiced, i.e., only the subject of the right or of the protected interest who has been offended by the tort may ask for reparations. In case of personal injury, subject of the offended right is the person against whom the tort is directed, and this person is entitled to damages; i.e., only the direct subject of the offence is the one who can claim damages from it. 236. Though direct victims may undoubtedly ask for reparation, indirect ones have a right to damages only if such a right is specifically provided by law,371 as damage sustained by such third parties does not primarily fall within the protective scope of the provisions on torts372 (e.g., damage sustained by the victim’s creditor due to the fact that the victim was not able to fulfil his contractual obligations because of the tort committed against him is not compensated, as provisions on torts do not aim in protecting contractual obligations). Indirectly prejudiced is the person who has sustained damage from the injury of a legal good belonging to another person. Accordingly, indirect victims are usually the direct victim’s creditors; their damage is constituted by the fact that their debtor is hindered in performing the contract because of the tort committed against him (e.g., destruction of the object the victim had undertaken to transfer to his creditor).373 237. A right to reparation is, as already mentioned, exceptionally provided to indirect victims in cases of personal injury and death (Articles 928–929 GCC). Article 929 GCC, concerning injury to one’s body or health, provides that claims for compensation also arise in favour of persons who, being entitled by the law to claim the performance of services by the victim, are now deprived of those services because of the tort committed against the victim. Similarly, in the case of death, 369. AP 243/2011, published in NOMOS and ISOKRATIS (see E. Dacoronia, Greece, in K. Oliphant & B.C. Steininger (eds) European Tort Law 2011 (2012), pp. 299–300, no. 41; 153/2005 EllDni 47 (2006) 429 (for a brief summary (in English) of the facts and the judgments of said decision as well as a short commentary thereof, see E. Dacoronia, Greece, in H. Koziol & B.C. Steininger (eds), European Tort Law 2005 (2006), pp. 319–320, nos 43–45); 1504/2000 DEE 7 (2001), 497 (for a brief summary (in English) of the facts and the judgments of said decision, see E. Dacoronia, Greece, in H. Koziol & B.C. Steininger (eds), European Tort Law 2001 (2002), pp. 273–275, nos 14, 16). 370. Article 297 GCC stipulates: ‘A person who is obligated to pay reparations shall use money. Nevertheless, the court may, taking into consideration special circumstances, order restitution to be made in kind in so far as this is not contrary to the interest of the creditor’ and Art. 298 GCC stipulates: ‘The reparations shall include the decrease in the existing property of the creditor as well as lost profits. Profit is deemed to have been lost which could probably have been expected in the ordinary course of events or according to the special circumstances, especially in the light of preparations and arrangements made’ (the translation of said articles is taken from the book of K.D. Kerameus & P.J. Kozyris (eds), Introduction to Greek Law (in English) (2nd ed. 1993)). 371. See relatively, P. Kornilakis, Law of Obligations, Special Part, § 124, pp. 407, 408; id., Law of Obligations, Special Part I, § 99 1 II2, pp. 596–599. 372. Ap. Georgiades, in Georgiades & Stathopoulos (eds), Civil Code, Art. 928 no. 1. 373. Id., Art. 914 no. 76.

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Article 928 GCC provides for the tortfeasor’s obligation to compensate the person entitled by law to claim either the performance of services or maintenance by the victim.374 238. The GCC explicitly provides in said articles that: (a) in case of provocation of the death of a person, the tortfeasor shall pay the medical expenses and the funeral expenses to the person who would otherwise bear such expenses. The said tortfeasor will also be bound to make reparations for the loss of maintenance or services, to the person who is entitled by law to claim maintenance or the performance of services by the victim (Article 928 GCC); and (b) in case of harm to a person’s body or health, the obligation shall, in addition to medical expenses and the damage already accrued, extend to the detriment which the act occasions to future earnings, and to the additional expenses the said person will have to bear because of an increase in his needs. There also arises an obligation to compensate the third party who, being entitled by law to claim the performance of services by the victim, is now deprived of the services because of the delict committed against the victim (Article 929 GCC).375 239. Both above provisions, the first applicable in case of provocation of death and the second in case of harm to a person’s body or health, oblige the tortfeasor to compensate third persons, other than the victim, when these persons are entitled by law to claim maintenance or the performance of services by the victim. The said provisions introduce an exception to the general rule in Greek tort law according to which third persons, other than the person who sustained a direct damage, are not entitled to damages, as they are outside the ambit of protection of the rules on tort. The above articles also apply in cases of strict liability.376 240. As a consequence, third persons, even belonging to the family of the direct victim, who sustain damage to their pecuniary interests (e.g., phone calls, tickets for trips, loss of working hours, payment of hospital expenses377 from the tort

374. It has to be noted that, according to AP 857/2001 ChrID A/2001, 704, 705, this obligation continues to exist even if the person entitled by law to claim maintenance cohabits later permanently with another person in free union, as the said obligation does not constitute a duty to alimony – which ceases, according to Art. 1444 § 2 GCC, when the person entitled to it remarries or lives with somebody else in free union – but it has a compensatory character. 375. For an analysis of Arts 928 and 929 GCC, see, i.a., Ap. Georgiades, in Georgiades and Stathopoulos (eds), Civil Code, Arts 928, 929. Also note that, according to Art. 16 of L. 551/1915 on Accidents at Work, in case of injury at work, the person suffering disablement or, in case of his death, his relatives are entitled to claim compensation according to Arts 297, 298 and 914 GCC only when the accident can be attributed to malice on the part of either the employer or his auxiliaries or when provisions on the safety of the employees are violated. 376. See, i.a., Ap. Georgiades, in Georgiades and Stathopoulos (eds), Civil Code, Arts 928 no. 4 and 929 no. 3; P. Kornilakis, Law of Obligations, p. 611. 377. The direct victim of a tort, though, who is looked after by his relatives, is entitled to seek from the tortfeasor the amount of money he would have expended on nurses’ fees, even if he gave no money to his relatives for the services, care and attention they provided.

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committed against the direct victim, are indirectly and not directly prejudiced378 and are not substituted to the damages claim of the victim nor acquire themselves a direct claim for damages,379 because their damage does not fall under the protective field of Articles 914 and 929 sentence a GCC.380 In conformity with the above, the Court of Cassation381 has considered that the general partnership has no right for damages against the person who has caused the death of a partner, from whose commercial activity also the partnership earned gains because said partnership was only indirectly prejudiced by the unlawful act. 241. The differentiation between direct and indirect victims and the fact that only the former are entitled to claim damages is prompted by the need to limit the tortfeasor’s liability, so it does not extend to the tort’s unfavourable reflective consequences in the property of third parties. Admittedly, if the tortfeasor was bound to restore damages incurred reflectively to third parties, he would come up against an unbearable burden, for he would be obliged to pay damages to an indefinite and indeterminable number of persons (e.g., the victim’s creditors), which would undoubtedly lead to the paralysis of every human activity.382 The legal basis for the limitation of the tortfeasor’s liability primarily to direct victims is found first in the letter of Article 914 GCC, which provides for compensating the one who unlawfully sustained damage and second in an argument from the contrary derived by the restrictively introduced exceptions of Articles 928 and 929 GCC.383 242. It has been argued, however, that the above generalization is not justified, that when from the same detrimental fact (direct or indirect) damage has occurred to several persons, the legal ground of liability cannot be excluded in advance; it is the protective ambit of the rule of law that has been violated384 and the causal relationship which will determine whether damages have to be paid or not to third parties.385 378. See also Ap. Georgiades, in Ap. Georgiades & M. Stathopoulos (eds), Civil Code (1982), Art. 929 no. 15; P. Kornilakis, Law of Obligations, Special Part I, § 102 4IV3, 623. Both authors, however, consider that, de lege ferenda, the relatives of the victim should be compensated for their expenses. 379. Contra A. Kritikos, On Compensation of Expenses and Damage of Persons Close to the One Directly Infringed, EEN 43 (1976) 88 ff. 380. AP 243/2011 supra (fn. 369); 798/2012, published in NOMOS (for a brief summary (in English) of the facts and the judgments of said decision as well as a short commentary thereof, see E. Dacoronia, Greece, in K. Oliphant & B.C. Steininger (eds), European Tort Law 2012 (2013), pp. 309–312, nos 21–25). 381. AP 1504/2000 DEE 7 (2001) 497 (for a brief summary (in English) of the facts and the judgments of said decision as well as a short commentary thereof, see E. Dacoronia, Greece, in H. Koziol & B.C. Steininger (eds), European Tort Law 2001 (2002), pp. 273–275, nos 14, 16). 382. I. Deliyannis-P. Kornilakis, Law of Obligations: Special Part, 1992, Vol. III, 242. 383. Ap. Georgiades, in Ap. Georgiades & M. Stathopoulos (eds), Civil Code, Art. 914 no. 70; P. Kornilakis, Law of Obligations, Special Part, § 99 1, 597. 384. The but-for test as well as the causa adequata theory do not solve the problem of limiting the tortfeasor’s liability in regard to the indirect victim, given that the tort committed against the direct victim constitutes a condicio sine qua non and usually a causa adequata also for the damage caused to the indirect victim. 385. I. Deliyannis-P. Kornilakis, Law of Obligations: Special Part III, 243; P. Kornilakis, Law of Obligations, Special Part, § 99 1, 597, 598; M. Stathopoulos, Law of Obligations, General Part, § 8 IV, p. 582, no. 116 and § 15 IV, pp. 992–993, no. 61.

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243. It must be noted that the differentiation between direct and indirect victims should not be confused with the differentiation between direct and indirect damage. As already mentioned, in Greece, the so-called primary damage of the victim (damage to a machine, bodily harm, etc.) is classified as ‘direct’ damage, while the ‘consequential’ damage (loss of production resulting from the damage to the machine, medical costs and loss of income resulting from bodily harm, etc.) is characterized as ‘indirect’ damage.386 Whether the ‘consequential’ (‘indirect’) damage of the direct victim can be compensated depends on whether it is causally connected to the damaging event and the legal ground of liability.387 §1. PECUNIARY LOSSES I. Compensation in Case of Injury to the Body or Health of a Person 244. According to Article 929 GCC, in case of injury to the body or health of a person, damages include, apart from the medical expenses and the damage already suffered, whatever the victim will be deprived of in the future, or he will have to additionally spend because of the increase in his expenses. Damages must be also paid to the third party who was entitled by law to claim the performance of services by the victim and is now deprived of them. From the combination of this article to Articles 914 and 298 GCC, it derives that in case of an unlawful and culpable detriment to the body or health, damages comprise not only the positive prejudice, i.e., the reduction of property, but also the lost profit (lucrum cessans). Such profit is considered to be the one that a person possibly anticipates, according to the usual course of events or the special circumstances, and especially according to the preliminary measures taken. The legal definition of ‘lost profit’, which is a legal notion, is provided by Article 298 GCC, where the anticipation of earnings is not exclusively connected to one and only cause of acquisition, e.g., to a valid employment contract or to the possession of a work permit as regards foreign workers, who are not citizens of a Member State of the EU. 245. In case of injury of the foreign victim, in order for Article 929 GCC to apply, the actual possibility of the victim to obtain earnings by virtue of an employment contract, either valid or null, and accordingly the claim which arises thereof suffice. Although it has been acknowledged that the acquisition of profit must not stem from a cause that is contrary to the law or bonos mores, i.e., from a violation of a legal prohibition concerning the activity itself, it has been stressed that this is not the case as regards the undertaking of work by a foreign worker who lacks the relevant administrative work permit.388 This new tendency of the jurisprudence, developed with decision 3/2004 of the Court of Cassation (in full bench), by which, 386. M. Stathopoulos, Law of Obligations, General Part, § 8 IV, pp. 576–577, no. 107. 387. Id., pp. 578–579, no. 111. 388. AP 3/2004 (in full bench), EllDni 45 (2004) 385 = ChrID ’Δ/2004, 214 = NoV 52 (2004) 960; 1559/ 2005 NoV 54 (2006) 401; 1155/2007, AP 1156/2007 both published in NoV 55 (2007) 2446; 1417/ 2008, published in NOMOS (for a summary of decision AP 3/2004 (in English), see E. Dacoronia, Greece, in H. Koziol & B.C. Steininger (eds), European Tort Law 2004 (2005), p. 337, no. 35–38;

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contrary to the till then jurisprudence,389 it was held that the existence of a valid work permit is not necessary for the claims deriving from a tortious act,390 was confirmed with posterior decisions of AP391 and showed the way the Greek Court of Cassation will also follow in future cases. II. Compensation in Case of Death A. Compensation for Medical and Funeral Expenses 246. Article 928 sentence 1 subparagraph a’ GCC stipulates that in case of cause of death of a person, the tortfeasor is obliged to pay the medical and funeral expenses to the person on whom the obligation of bearing such expenses lies according to the law. There is no unanimity in Greek literature on whether said obligation burdens the person who is obliged according to the law to maintain the victim or whether the heir has the obligation to bear the said expenses which must be ultimately borne by the tortfeasor. 247. Article 928 GCC does not give a definition392 of the term ‘funeral expenses’. According to the Greek jurisprudence, the funeral expenses covered include burial expenses, i.e., what is necessary for the preparation and for the actual burial as well as the expenses for the funerary rites celebration, but not the mourning expenses, i.e., those undertaken in order to fulfil a moral, religious duty and to show respect to the memory of the deceased393 (such as expenses for the care of the grave,394 for buying the clothes and shoes of the deceased395 as well as mourning

389.

390. 391.

392. 393. 394. 395.

European Tort Law 2005 (2006), p. 320, nos 46–48; European Tort Law 2007 (2008), pp. 321–323, no 41–45; European Tort Law 2008 (2009), pp. 330–331, nos 19–22, respectively). See AP 375/2003 NoV 51 (2003) 1858 = ChrID Γ/2003, 616, 617, followed by a commentary of E. Kastrisios, 617–619 and (in English), see E. Dacoronia, Greece, in H. Koziol & B.C. Steininger (eds), European Tort Law 2003 (2004), 223 f., nos 38–45. Said decision was overruled by the above-mentioned decision AP 3/2004 (in full bench), supra (fn. 388). With the minority though of one member of the Court, who was of the view that the wife and children of the deceased foreign worker cannot ask to be compensated for the income the latter would have received from work that is forbidden by law. AP 1155/2007 supra (fn. 388); 1156/2007 supra (fn. 388); 1385/2007, NoV 56 (2008) 181(for a brief summary (in English) of the facts and the judgments of said decision as well as a short commentary thereof, see E. Dacoronia, Greece, in H. Koziol & B.C. Steininger (eds), European Tort Law 2007 (2008), pp. 321–323, nos 41, 43, 45); 1958/2009, published in ISOKRATIS (for a brief summary (in English) of the facts and the judgments of said decision as well as a short commentary thereof, see E. Dacoronia, Greece, in H. Koziol & B.C. Steininger (eds), European Tort Law 2009 (2010), pp. 273–274, nos 14–16). A definition of funeral expenses is not given either in Art. VI. – 2:202 (2) of the DCFR which stipulates that where a person has been fatally injured, reasonable funeral expenses are legally relevant damage to the person incurring them. EfAth 4246/2006 EllDni 49 (2008) 822; 7962/2006, not published, cited by I.N. Katras in his note under EfAth 2669/2009 EllDni 53 (2012) 152. See Ap. Georgiades, 928 no. 17; A. Kritikos, Compensation for Car Accidents, Vol. I, § 19 II, p. 526, no. 28; EfAth 2669/2009, supra (fn. 393); Thessaloniki Court of Appeal 2513/1999 Arm 54 (2000) 1487. EfAth 3379/2005, not published, cited by Katras, supra (fn. 393).

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dresses396 or for memorial services)397 or expenses that are related to the funeral but derive from generosity and are made in order to show the special affection and love towards the dead (such as expenses for funeral wreaths,398 fees for those carrying them and expenses for laying flower crosses).399,400 248. Accordingly, it has been held in the Greek jurisprudence,401 and is supported by the Greek literature on the subject matter,402 that in the funeral expenses are included the expenses for the care of the dead, for the coffin, pillow and candles, for the flowers of the coffin and for the decoration of the church, for the payment of the funeral office and the persons carrying the coffin, for the publication of funeral classifieds in newspapers, the expenses for the funerary rites celebration (rights of the church, fees of the chaplaincy and of the chanters), the expenses for the transportation of the deceased to the cemetery and for the hearse as well as the rights of the cemetery for the burial. Also included in the funeral expenses are the cost for transportation of the corpse to the place of his residence by the ordinary transport means403 and the expenses of the parents in order to get from their habitual residence to the place where their child died to recover the corpse and transport it to the place of burial, as, according not only to the social understandings but also to the administrative provisions, the deceased is not the object of a common transport or delivery of a thing but is delivered to the persons legally responsible for his burial, i.e., mainly to his parents.404 Finally, to the funeral expenses are included the funeral 396. EfAth 2522/1987 EllDni 29 (1988) 559; 7561/1990 ArchN 41 (1990) 788; 7962/2006, supra (fn. 393); Thessaloniki Court of Appeal 633/2008 Arm 63 (2009) 40, followed by a note of A.- N.A. Liontas; Crete Court of Appeal 477/1986 EpSygkD 1989, 108. See also G. Georgiades, in Georgiades SEAK I, Art. 928 no. 9. 397. EfAth 3360/1999, not published, cited by Katras, supra (fn. 393); Thessaloniki Court of Appeal 633/2008, supra (fn. 396). 398. EfAth 7561/1990, supra (fn. 396). 399. EfAth 4630/2002 EllDni 44 (2003) 1392; Thessaloniki Court of Appeal 2513/1999, supra (fn. 394); 1506/2003 Arm 57 (2003) 1760. 400. Thessaloniki Court of Appeal 633/2008, supra (fn. 396). The analysis of the funeral expenses made by the Greek jurisprudence justifies the statement of the drafters of the DCFR that the expression ‘funeral costs’ is broader than the expression ‘burial costs’ (see C. Von Bar & E. Clive (eds), p. 3228. 401. See AP 119/1999 EllDni 40 (1999) 773; EfAth 920/1986 EllDni 28 (1987) 472 = NoV 35 (1987) 929; 3824/1992 EpSygkD 1993, 91; 8519/1992 EpSygkD 1993, 88; 4630/2002, supra (fn. 399); 8660/2005, not published, cited by Katras, supra (fn. 393); 2669/2009, supra (fn. 393); 4074/2009 EllDni 50 (2009) 1431; Thessaloniki Court of Appeal 1735/1993 EpSygkD 1994, 297 = EllDni 35 (1994) 676; 2513/1999, supra (fn. 394); 1506/2003, supra (fn. 400); 633/2008, supra (fn. 396); Piraeus Court of Appeal 565/1994 EpSygkD 1994, 457; Athens Single Member Court of First Instance 630/2007, published in NOMOS. 402. A. Kritikos, Compensation for Car Accidents, Vol. I, § 19 II, pp. 526–527, nos 28–30; V Vathrakokoilis, Analytical Interpretation: Jurisprudence of GCC, Vol 3, 2006, Art. 928, pp. 1016 f. 403. Thessaloniki Court of Appeal 1735/1993, supra (fn. 401); 633/2008, supra (fn. 396). 404. AP 563/1999 EllDni 41 (2000) 46. Contra Thessaloniki Court of Appeal 2513/1999, supra (fn. 394). The Court of Cassation has also held that the expenses of the spouse and the children of the deceased in order to go to the place of the death or to the place of burial are not included (AP 1590/ 1980 NoV 29 (1981) 895; EfAth 8200/1984 Arm 39 (1985) 215; 977/1986 EllDni 27 (1986) 516; 3012/1986 ArchN 37 (1986) 468; 14920/1987 Ep Sygk D 1989, 313; 4630/2002, supra (fn. 399); Thessaloniki Court of Appeal 2513/1999, supra (fn. 394); 1506/2003, supra (fn. 399).

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reception expenses405 or the buffet expenses,406 i.e., the expenses for offering food, coffee and beverages to the persons who attended the funeral, if this is usual and has been established by custom at the place of residence or the village of the deceased.407 249. Also to the funeral expenses, which are analogous to the social status of the deceased or his parents,408 the expenses for the construction of a marble grave are included, according to the commands of logic and common experience, as this expense is also immediately connected to the person’s death.409 If, however, the construction of the grave is intended for the burial of other members of the family in the future as well (family grave), then the tortfeasor is only burdened with the expense that is necessary for the construction of the grave of the deceased.410 250. The payment of the funeral expenses can be claimed by the persons who were obliged by law to the maintenance of the victim, such as parents411 if the victim was actually maintained by said persons, or by the heirs of the victim or by one of them if the latter actually paid the expenses. The claim for funeral expenses has the character of damages and is not a claim belonging to the assets of the succession; thus, it is not shared among the heirs on the basis of the succession portion of each heir.412 405. EfAth 8660/2005, not published. 406. EfAth 245/2003, not published, cited by Katras, supra (fn. 393); Thessaloniki Court of Appeal 633/ 2008, supra (fn. 396). 407. According to the EfAth 4630/2002, supra (fn. 399), however, offering a full lunch is not immediately causally connected to the death of the child or spouse and is not to be included among the expenses that can be recovered. 408. EfAth 4630/2002, supra (fn. 399); 7561/1990 supra (fn. 396); Thessaloniki Court of Appeal 633/ 2008, supra (fn. 396); Dodoni Court of Appeal 96/2004, published in NOMOS. If the funeral expenses exceed the social status of the deceased, then only the expenses that respond to the said status can be claimed (A. Kritikos, Compensation for car accidents, Vol. I, § 19 II, p. 525, no. 27); A.- N.A. Liontas, Arm 63 (2009) 41. 409. AP 119/1999, supra (fn. 401); Thessaloniki Court of Appeal 633/2008, supra (fn. 396); Patras Court of Appeal 80/2008, supra (fn. 153). See also EfAth 920/1986 (supra, fn. 401); Thessaloniki Court of Appeal 2513/1999, supra (fn. 394). According to the EfAth 7561/1990, supra (fn. 396), the cost for a granite grave was considered appropriate, according to the customs of Germany, place of residence of the deceased. 410. See A. Kritikos, Compensation for Car Accidents, Vol. I, § 19 II, p. 526, no. 28; EfAth 2669/2009, supra (fn. 393). It has been also held that the expense for the remuneration of the Municipality Philarmonic orchestra is included in the funeral expenses (EfAth 6542/2003, not published, cited by Katras, supra (fn. 393). 411. EfAth 4630/2002, supra (fn. 399); Single Member Court of First Instance of Thessaloniki. 233/ 2013 Arm 67 (2013) 1845. 412. Thessaloniki Court of Appeal 1735/1993, supra (fn. 401); Patras Court of Appeal 80/2008, supra (fn. 153); Larissa Court of Appeal 509/2003 Dikografia 2004, 227; Dodoni Court of Appeal 96/2004 supra (fn. 408); Athens Single Member Court of First Instance 1488/2007 TPCL 1 (2008) 536; Irakleio Single Member Court of First Instance 220/2006 EpiDikIA 2007, 60; Chalkida Single Member Court of First Instance 575/2002 Arm 58 (2004) 523, followed by a note of St. TroianosGoulielmos; A.- N.A. Liontas, Arm (63) 2009, 42. For an analysis of Art. 928 sent. 1 GCC, see, i.a., Georgiades, in Georgiades SEAK I, Art. 928 nos 1–10 and 21–25; I. Karakostas, Civil Code, 928 nos 1–12 and 42–48.

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B. Compensation for Loss of Maintenance or Services 251. According to Article 928 subparagraph b’ GCC, in case of death, the person bound to pay damages is also bound to make reparations for the loss of maintenance or services, to the person who is legally entitled to claim for maintenance or the performance of services from the victim. Such a claim for maintenance exists, e.g., between spouses, and derives from Article 1389 GCC regulating the common contributions of the spouses to the needs of the household. According to the subsequent Article 1391 para. b’ GCC, however, such an obligation for alimony ceases or its amount decreases when it is dictated by the circumstances. From the above articles, it derives that, in case of death of one of the spouses, who, when alive, lived separated, and whose death is attributable to somebody else’s unjust act, the surviving spouse has a claim, according to Article 928 subparagraph b GCC, against the tortfeasor, only if the presuppositions of Article 1391 GCC are met. This means that the tortfeasor is bound under the same presuppositions as the deceased spouse, in whose position the former enters because of the death.413 The simple fact that the spouses do not cohabitate any more does not deprive the surviving spouse of a claim against the tortfeasor, according to Article 928 subparagraph b GCC. If the surviving spouse has ceased the cohabitation on a reasonable ground, such spouse has a claim against the tortfeasor.414 252. Accordingly, the surviving spouse is entitled to seek compensation by the tortfeasor for the loss of services the deceased spouse would have provided. The amount to be compensated is equal to the amount the surviving spouse would have to pay for the employment of a person who would render the services provided by the wife, even if such a person is not employed.415

413. Compare, however, AP 857/2001 EllDni 42 (2001) 899 = ChrID A/2001, 704, 705, according to which the obligation of the tortfeasor continues to exist even if the surviving spouse cohabitates later – after the death of the other spouse – permanently with another person in free union, as the said obligation of the tortfeasor does not constitute a duty to alimony, which ceases, according to Art. 1444 § 2 GCC, when the person entitled to it remarries or lives with somebody else in free union, but it has a compensatory character. Previously the EfAth (358/1997 EllDni 39 (1998) 398, followed by a note of A. Kritikos) had held that if the surviving spouse cohabitates later – after the death of the other spouse – permanently with another person in free union, her claim for damages ceases by application of Art. 1444 § 2 GCC by analogy. 414. AP 1586/2002 NoV 51 (2003) 1202 (for a brief summary (in English) of the facts and the judgments of said decision as well as a short commentary thereof, see E. Dacoronia, Greece, in H. Koziol & B.C. Steininger (eds), European Tort Law 2002 (2003), pp. 242–245, nos 44, 50). 415. AP 84/2005 ChrID E/2005, 815 (for a brief summary (in English) of the facts and the judgments of said decision as well as a short commentary thereof, see E. Dacoronia, Greece, in H. Koziol & B.C. Steininger (eds), European Tort Law 2005 (2006), pp. 317–319, nos 35, 37, 40–41); 461/1991 EllDni 33 (1992) 79; 1230/1989 EllDni 32 (1991) 965; 46/1966 NoV 14 (1966) 725 cmt. by K.I. Papadimitriou; EfAth 208/1993 Arm 48 (1994) 536; 4485/1986 EllDni 27 (1986) 1343; 7212/1984 NoV 32 (1984) 1561; Thessaloniki Court of Appeal 1376/1981 Arm 36 (1982) 284; Larissa Court of Appeal 568/1985 Arm 39 (1985) 1050. See also Ap. Georgiades, in: Ap. Georgiades & M. Stathopoulos (eds), Civil Code, Art. 928 nos 45 and 50; Ap. Georgiades, Law of Obligations, General Part, § 62, p. 707, nos 70–71; P. Kornilakis, Law of Obligations, Special Part I, § 102 4IV3, 623.

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253. It has to be noted, however, that the surviving spouse does not have a claim for compensation if he remarries. In such a case, the new wife is the one that offers her services to the surviving spouse and compensation for the services rendered by the deceased wife would put the plaintiff in a better position than the one he was in before the death of his first wife.416 254. On the basis of Article 928 section b’ GCC, which applies, in case of death of a foreigner because of a tort, according to Article 26 GCC,417 a foreigner’s wife and children have the right to seek, from the person bound to make reparation, compensation for the loss of maintenance which the victim would have provided them, given that, at the usual course of things, the latter would continue to work, even if he did not hold a legal work permit.418 According to Article 298 GCC, lost profit is deemed to be what can be expected as probable according to the usual course of events or the special circumstances and which the victim, a foreign employee with no work permit, would have obtained even by virtue of a forbidden, due to the lack of the permit, employment contract on the basis of Article 904 GCC even if the tort had not taken place. 255. Other persons who can seek compensation from the tortfeasor because they are legally entitled to claim for maintenance from the victim are ascendants and descendants (Articles 1485, 1489 GCC), siblings, provided, according to Article 1504 GCC, that they are unable to support themselves because of special reasons, and particularly by reason of age, serious illness or disability, children outside wedlock, who are entitled to claim for maintenance from their mother in any case and from their father, if they have been recognized with one of the ways described in Article 1473 GCC, adopted children (Article 1561 GCC) and children in their mother’s womb at the time of the event that caused the death of its parent, provided they are later born alive (Article 36 GCC). C. Compensation in Case of Suicide after an Injury 256. Neither the above-mentioned Article 928 GCC nor any other article of the GCC gives an explicit answer to the issue of whether persons entitled by law to claim maintenance or the performance of services by the victim are entitled to compensation by the tortfeasor when the victim, after his severe injury, and because of it, committed suicide. The issues which arise here are, first, the time elapsed between the harm and the death and, second, the fact that apart from the act that caused the accident, there is a second act, by the victim himself that caused the death. 416. EfAth 3311/1977 NoV 26 (1978) 236; Drama Court of First Instance 236/1972 NoV 21 (1973) 221. 417. Article 26 GCC: ‘Obligations arising from tort. Obligations arising from tort are governed by law of the State where the tort was committed.’ 418. AP 3/2004 (full bench), supra (fn. 388); AP 1385/2007 supra (fn. 391).

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257. Greek courts have not, to our knowledge, dealt with such a case until now. They have only dealt with two cases where the wife (in the first case)419 and the mother (in the second case)420 of the victim killed in the road accident, committed suicide, because of grief and deep melancholy caused by the death of their respective spouse and son. The issue here was whether Article 928 GCC could apply, and whether the relatives of the person who committed suicide could claim funeral expenses and compensation for pain and suffering from the person who caused the accident. Both decisions rejected the actions filed as not legally founded on the legal ground of lack of causation between the accident and the suicide. 258. As pointed out,421 Article 928 GCC, obviously referring to the usual cases of death, does not deal with the issue of the way the death occurred, i.e., of whether the said death is a direct result of the initial tort or whether it is due to an additional act of the victim (suicide). The decision for this second act basically derives from the initial tort (injury). However, other factors (e.g., the idiosyncrasies of the victim) play a role as well and contribute to his death. The answer to whether Articles 928 ff. GCC apply and whether the relatives of the person who committed suicide could exercise the rights provided therein against the person who caused the accident should be given according to the theory of adequate causation. It should also not differ from the solution given to the above cases where the wife and mother respectively of the deceased committed suicide. According to the theory of adequate causation, an event must in general have the tendency and capacity to lead to the damage caused in the usual course of things so that the said damage can be attributed to a certain person, who must pay damages. There is no causal relationship when the damage is caused by an unforeseeable event, and is accidental or an exceptional case which is due to the particularity of the specific case.422 §2. NON-PECUNIARY LOSSES 259. The Greek legislator has opted for a system where compensation for nonpecuniary damage is recognized only in exceptional cases and only where it is especially provided for by law (Article 299 GCC).423 Compensation for moral harm is recognized, for example, in case of the infringement of the personality (Articles 57 and 59 GCC)424 and in case of tort, especially for the person who suffered an attack of his health, honour or chastity or who was deprived of his liberty.425 Article 932 419. 420. 421. 422.

EfAth 10796/1988 EllDni 34 (1993) 603, followed by a note of A. Kritikos. Athens Single Member Court of First Instance 2758/1996 SEpSygkD 1997, 39. A. Kritikos, EllDni 34 (1993) 606. See M. Stathopoulos, Law of Obligations, General Part, § 8 IV, p. 588, no. 125; EfAth 2249/2002 EllDni 44 (2003) 218; 10641/1995 EllDni 40 (1999) 157 ff. 423. Article 299. ‘Non-pecuniary damage. For non-pecuniary damage, reparations in money shall be due only in the cases provided for by law.’ 424. See St. Paterakis, Monetary Compensation for Moral Harm, 2nd edn., 2001, pp. 262, 263; K. Fountedaki, in Ap. Georgiades SEAK I, Art. 57 no. 5. 425. See M. Stathopoulos, Law of Obligations, § 8 III, pp. 526–528, nos 64–65.

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GCC reads as follows: ‘In case of tort, independently from the damages for pecuniary damage, the court may award a reasonable, according to its judgment, monetary compensation for moral harm. This applies especially to the person who has suffered an offence to his health, honour or chastity or he was deprived of his liberty. In case of cause of death of a person, this monetary compensation may be awarded to the family of the victim for pain and suffering.’426 260. Thus, according to Article 932 GCC, the courts in Greece, in case of a delict, irrespective of the damages for the pecuniary injury, may award a reasonable amount of money to compensate the moral or non-pecuniary harm, which the plaintiff has suffered as a consequence of the unlawful act. In the case of death, this amount of money may be awarded to the family of the victim as pain and suffering. Each member of the family has in case of death of his beloved person a personal and independent right to claim compensation for his pain and suffering because of the death of his close relative. The award of an amount of money to one of the members of the family does not preclude the others from claiming such an amount. 261. The right to compensation for pain and suffering is independent from the right of the injured victim for compensation of his moral harm which in case of his death is not inherited by his heirs. By way of exception, this right of the injured victim can be inherited only if he has acknowledged it by contract or he has filed the relevant action before his death according to Article 933 GCC. 262. Accordingly, it has been held427 that from the combination of Articles 932 and 933 GCC, it clearly derives that if a person has been injured by a tortuous behaviour and, while alive, files an action seeking monetary compensation for moral harm because of his injury and later he dies because of this same injury, then the members of his family are entitled to claim monetary compensation for pain and suffering because of his death and, in parallel, continue the court action filed by the victim while alive, as his heirs. This is due to the fact that the claim of the members of the family of the deceased deriving from Article 932 sentence 3 GCC is a claim they have out of their own right and is born independently of their quality as the heirs of the victim, aiming at their relief from the mental pain caused by the death of their beloved relative. This claim is different from the claim of the injured person who has filed an action for compensation of his moral harm according to Article 932 sentences 1 and 2 GCC, which is inherited according to Article 933 GCC, being an asset of the estate that evolves, after the death of the victim, to his heirs.

426. It has to be made clear that the term ‘pain and suffering’ (in Greek ‘psychiki odyni’) is only used for the amounts awarded to the family of the victim in case of the latter’s death, while the term ‘moral or non-pecuniary harm’ (in Greek ‘ithiki vlavi’) is used for the amount awarded to the victim himself. 427. AP 416/2012, published in NOMOS (for a brief summary (in English) of the facts and the judgments of said decision as well as a short commentary thereof, see E. Dacoronia, Greece, in K. Oliphant & B.C. Steininger (eds), European Tort Law 2012 (2013), pp. 315–317, nos 31–33).

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I. Criteria Taken into Consideration When Determining the Amounts Awarded 263. The compensation for moral harm or pain and suffering does not have the character of a private punishment and does not aim at imposing a sanction on the tortfeasor. The amounts awarded are exclusively determined by jurisprudence; there are no specific sums or tables with specific sums for certain injuries. The amounts of money awarded used to be insignificant. Today, however, there is a tendency of the Courts to award more substantial amounts of money depending on the kind of damage sustained; extremely rarely, however, the amount asked for is awarded.428 264. The Courts, when determining the amounts of money to be awarded, take into consideration the kind of the offence, the importance of the harm sustained, the conditions under which the accident took place, the degree of fault of the tortfeasor, the eventual concurrent fault of the victim,429 the economic and social status of both the tortfeasor and the victim,430 and in particular that of the victim, the penalty eventually imposed upon the tortfeasor, the special personal status of the victim (age, sex, professional capacities, etc.), the behaviour of the tortfeasor after the commitment of the tort, etc.431 The concurrent fault of the victim is co-evaluated, even if the victim is a minor; in such a case, the lack of supervision on the part of the parent is also co-evaluated not only for the reduction of the monetary compensation to be awarded to the latter but also for the reduction of the amount to be awarded to other members of the family of the victim.432 265. In particular, in cases of bodily injury, the gravity of the harm and of the injuries is mostly taken into consideration for the determination of the extent of the amount awarded. Furthermore, the duration of the victim’s hospitalization,433 the victim’s disability to work,434 young age,435 marital status (single or not)436 as well

428. For a relevant list for amounts awarded in various cases, see E. Dacoronia, Tort Law in Greece. The State of Art (in English), in Studia in honorem Pelayia Yessiou-Faltsi, 2007, σ. 57 ff. 429. When the concurrent fault of the victim is taken into consideration in the determination of the extent of the ‘reasonable’ compensation, the amount of compensation decided by the Court as ‘reasonable’ should not be reduced once again in proportion to the percentage of the victim’s concurrent fault (AP 1045/2007, NoV 55 (2007) 2438). 430. Athens Adm Court of Appeal 15/2007 Dni 2010, 287. 431. AP 163/2007 ChrID Z/2007, 602 f (for a presentation of the facts and the judgment in English, see E. Dacoronia, in H. Koziol & B.C. Steininger (eds), European Tort Law 2007 (2008), pp. 325–327, nos 53, 56, 57); 1045/2007, supra (fn. 429); 1261/2007, supra (fn. 282); 1604/2007 and 1220/2008 both published in ISOKRATIS. For additional jurisprudence, see, i.a., P. Kornilakis, Law of Obligations, Special Part I, § 106 8 III, 652 f.; St. Paterakis, Monetary Compensation for Moral Harm, 320 f. 432. AP 1261/2007, supra (fn. 282). 433. See AP 606/2006, published in ISOKRATIS; Thessaloniki Court of Appeal 2268/1999 Arm 52 (1998) 213; Ioannina Court of Appeal 127/2005 EEN 2006, 116. 434. See AP 208/1995 EEN 1996, 194; Thessaloniki Court of Appeal 2268/1999, supra (fn. 433). 435. See AP 208/1995, supra; 776/2007, published in ISOKRATIS; Ioannina Court of Appeal 127/2005, supra (fn. 433); Patras Court of Appeal 1320/2007, published in ISOKRATIS. 436. Patras Court of Appeal 1320/2007, supra (fn. 435).

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as the impact of the accident upon his professional future437 are included in the criteria taken into consideration. 266. It has to be noted here that, according to the Court of Cassation,438 the award of pecuniary compensation for the moral harm of a person injured in a car accident does not preclude the possibility of this person to later seek additional pecuniary compensation with a new court action. In order to ask for such additional compensation, the injured party has to prove that the consequences of the unlawful act and the moral harm have been manifested later and that the court that awarded the previous pecuniary compensation could not have foreseen these new consequences. Thus, the res judicata does not prevent the award of additional compensation for moral harm if an unpredictable development of the victim’s health happens. Such a development is considered unpredictable when it is based on facts that derived from a detrimental cause existing in the past, but they could not have been objectively foreseen at the time of the previous trial, and therefore they have not been taken into consideration. 267. The above are illustrated in AP 426/2000439 and in AP 648/2008.440 In the first case, as a result of the defendant’s culpable act, the plaintiff suffered severe injuries, which caused his permanent disability. The percentage of disability (95%) was confirmed in 1992, so it was not known yet to the plaintiff when he first brought his action against the defendant in 1989, and it could not have been foreseen by the Court either. Consequently, it was held that the plaintiff was entitled to claim EUR 14,674 as an additional pecuniary compensation for the additional moral harm he suffered from the unexpected consequences of his injuries (an almost total permanent disability). On the contrary, in the second case brought before the Court of Cassation, the Court held that the decision of the Court of Appeal had taken into consideration the very serious injury of the victim, his total invalidity, his pain, etc., in order to decide on the amount of compensation for his moral harm. The elements taken into consideration were also the surgical operations that the victim would have to undergo. So, according to the Court of Cassation, the surgical operations that were undergone in the meantime did not constitute an unpredictable negative development of the victim’s health, and, hence, he was not entitled to an additional compensation for moral harm. 268. Finally, the economic status of the insurance company is not taken into consideration when determining the amount to be awarded because, according to the jurisprudence, the liability of the jointly and severally co-liable insurance company

437. See Thessaloniki Court of Appeal 2268/1999, supra (fn. 433). 438. AP 426/2000 EllDni 41 (2000) 1575, 1576 = ChrID A/2001, 125, 126. See also AP 715/2000 EllDni 42 (2001) 98, 99 and AP 648/2002 ChrID B/2002, 504, 505. 439. AP 426/2000, supra (fn. 438). 440. AP 648/2008, supra (fn. 438).

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has the character of guarantee.441 As a consequence, neither a high-coverage limit nor a slow regulation of the damage by the insurer lead to higher amounts. II. Development of Amounts Awarded A. In Case of Most Severe Injury (E.g., Tetraplegics, Severe Brain Damage) 269. The amounts awarded for moral harm in cases of tetraplegics or severe brain damage have risen during the last years, but there is no uniformity in the amounts awarded. For example for the very severe injury reported in AP 632/2010 (cranium-brain bruise) the Court of Appeal awarded EUR 80,000 to the victim on grounds of Article 932 GCC and EUR 100,000 on grounds of Article 931 GCC442 while for the same very severe injury reported in AP 776/2007443 (cranium-brain bruise, brain rupture, limbs’ operational derangements, traumatic syndrome), the Court of Appeal confirmed the decision of the Court of First Instance, which had awarded EUR 80,000 to the victim on grounds of Article 932 GCC and EUR 40,000 on grounds of Article 931 GCC; EUR 80,000 as moral harm were also awarded for the very severe injury reported in AP 436/2008444 (the victim had to be put on a life support machine for five days and to undergo several repeated surgeries); EUR 75,000 were awarded by the Lamia Court of Appeal 264/2006445 to the victim, who suffered a permanent disability, confined to bed for all his life, while according to the Thessaloniki Court of Appeal 2041/1999,446 the amount of EUR 5,870 was awarded as moral harm to one of the victims who suffered a very severe disability and only EUR 4,403 to the other who suffered a cranium-brain bruise. 270. The Courts in Greece award compensation for moral harm even in cases where the victim is, due to his very severe injury, disconnected from the environment and not able to feel the gravity of the accident and of the harm he has suffered, on the ground that it is possible that the health situation of the victim can be ameliorated in the future and he can be able to feel the consequences of the accident.447 Accordingly, the amount of EUR 250,000 was awarded by the Single Member Court of First Instance of Kalamata448 to a 23-year-old young girl who remained a so-called plant after a car accident (she was a passenger in a taxi), which was then increased to EUR 300,000 by the Court of Appeal of Nafplio449 (the amount claimed was EUR 1,000,000). 441. See (i.a.) AP 433/2008, published in NOMOS; 163/2007, supra (fn. 431); Thessaloniki Court of Appeal 1532/1999 Arm 53 (1999), 1203; 2268/1999, supra (fn. 433); EfAth 14324/1987 EllDni 30 (1989) 118, followed by a note of A. Kritikos. 442. For the additional compensation in case of disfiguration (Art. 931 GCC), see infra, under VIII. 443. AP 776/2007, supra (fn. 435). 444. Published in ISOKRATIS. 445. The amount initially awarded by the Court of First Instance was EUR 100,000. 446. Thessaloniki Court of Appeal 2041/1999 SESygkD 2001, 482. 447. EfAth 1752/1992 EllDni 34 (1993) 1489; Kalamata Single Member Court of First Instance 107/ 2003, published in NOMOS. 448. Kalamata Single Member Court of First Instance 107/2003, supra (fn. 447). 449. Nafplio Court of Appeal 147/2004 EpSygkD 2004, 336.

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271. Concluding, the extent of the amounts awarded is quite diverse, varying from case to case, because it entirely depends on the facts of each case and the discretion of the Courts, the members of which try to decide in an equitable manner, based on the parameters of each particular case. It is our impression that the amounts claimed by the plaintiffs also play a role in the extent of the amount awarded, though rarely is the amount sought entirely awarded. 272. Bearing in mind the above and that any generalization is, somehow, risky, we can note, to the best of our knowledge, that: – among the highest amounts awarded so far for the most severe injuries are: EUR 550,000 for an amputation of the lower limbs,450 though in a case against the State, an even higher amount (EUR 600,000) was awarded for severe brain damage following an accident caused by a fire brigade;451 – though the highest amount awarded fifteen years ago was: for a permanently disabled person EUR 234,776 on grounds of Article 932 GCC and EUR 117,388 on grounds of Article 931 GCC;452 – typical sums awarded for tetraplegics or severe brain damage are: EUR 300,000453 and EUR 200,000 to a 3-month-old baby who suffered a permanent disability (spastic tetraplegics, etc.).454 B. In Case of Wrongful Death 273. When comparing the amounts awarded to the victim for moral harm in case of injury to those awarded to the parents for pain and suffering because of the death of their close relative, we arrive at the conclusion that, as a principle, the highest amounts are awarded for pain and suffering to the members of the victim’s family who have suffered from his loss. The pecuniary satisfaction provided to the family in case of a person’s death is justified by the profound mental pain caused by the victim’s death to the connected closer relatives, and aims, by means of a legitimate amount, to the acquisition of property assets which will lead, to the greatest possible degree, to their moral consolation and mental relief.455 Fairly, thus, this pecuniary satisfaction is higher compared to the other cases of award for moral harm,

450. Patras Court of Appeal 194/2006 SESygkD 2007, 161. In 2003, the same Court of Appeal had awarded EUR 440,200, also for an amputation of both legs (Patras Court of Appeal 671/2003 ArchN 55 (2004) 561). 451. Council of State 2819/2005 SESygkD 2007, 345. 452. Athens Single Member Court of First Instance 5035/1999 ESygkD 2000, 307. The Court of Appeal of Patras, however, in its decision 798/1999 ESygkD 1999, 625, only awarded EUR 146,735 to a person who remained a so-called vegetable after the accident. 453. EfAth 2035/2005 SESygkD 2005, 151; Nafplio Court of Appeal 147/2004 SESygkD 2004, 336. 454. Larissa Court of Appeal 221/2005 Arm 59 (2005) 1564. 455. See (i.a.) K. Kafkas & D. Kafkas, Law of Obligations, Special Part Vol. B, 7th ed., 1993, § 3, p. 918; I. Karakatsanis, NoV 24 (1976) 667; A. Kritikos, Compensation for Car Accidents, b supplement to the 3rd edn., 2005, no. 932. From the relevant jurisprudence, see indicatively AP 1752/ 2005, EllDni 47 (2006) 999, followed by a note of I. Katras; 1641/2003 EllDni 45 (2004) 716;

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given that the relatives’ shock at the loss of their beloved person is definitely more intense and profound. The awarded amounts are higher, so that the member of the family can be really helped to counterbalance the aggravating psychological consequences that were caused by the tort, to replace the grief and to get over or alleviate the pain and suffering. In cases of very severe bodily injury (e.g., tetraplegics, severe brain damage), however, as mentioned before, very high amounts are awarded for moral harm, similar or even higher to those awarded as pain and suffering to the closest relatives in case of death. 274. The Courts do not award the same amount of money to all family members; as, in principle, those who are most closely related to the deceased with blood bonds have more intense feelings of pain and sorrow than the more remote members of the family, there is a differentiation in the amount awarded. Another parameter taken into consideration is the fact of whether the said relatives lived with the deceased or not. However, though, as mentioned hereinabove, it is irrelevant whether the members of the family lived with the victim or not, as long as they were closely connected to him and suffered from his loss, in order to be compensated for pain and suffering, the Courts take into consideration this parameter when determining the extent of the amount awarded. This is reasonable, as the feeling of the absence of a person is more intense to the one who used to live with the deceased. 275. The above are illustrated in some examples from the jurisprudence: – the Court of Cassation, with its decision AP 500/2010,456 confirmed the decision of the Court of Appeal, which had awarded EUR 100,000 to each parent and EUR 80,000 to the sister. The reason for the quite high amounts of money awarded is probably that one of the defendants was the manufacturer of a defective product (system of airbags in a car of a well-known brand); – the Court of Cassation, with its decision AP 1255/2007,457 confirmed the decision of the Court of Appeal, which had awarded EUR 58,694 to each of the parents and EUR 29,347 to the sister; – the Single Member Court of First Instance of Thessaloniki, with its decision 3744/2006,458 awarded EUR 40,000 to each of the parents, EUR 15,000 to the 12-year-old sister, EUR 15,000 to the grandfather and EUR 10,000 to each grandmother; – the three-member Court of Appeal of, with its decision 226/1998,459 awarded EUR 4,402 to the spouse, EUR 2,935 to each of the children, EUR 2,054 to each

456. 457. 458. 459.

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911/2003 ChrID Γ/2003, 993; 1652/2002 NoV 51 (2003) 1215; 97/2000 ChrID A/2001, 120 followed by a note of L. Kitsaras; 1599/1999 EEN 2001, 317; Thessaloniki Court of Appeal 1674/ 2003 Arm 58 (2004) 520; 2513/1999, supra (fn. 394), both followed by a note of S. TroianouGoulielmou; 832/1999 Arm 55 (2001), 1039; Chalkida Single Member Court of First Instance 575/ 2002 ArchN 55 (2004) 374, followed by a note of C. Nikolaides = Arm 58 (2004) 523, followed by a note of S. Troianou-Goulielmou. AP 500/2010, TPCL 3 (2010) 799. AP 1255/2007, published in ISOKRATIS and NOMOS. 3744/2006, published in ISOKRATIS. Thrace Court of Appeal 226/1998 ArchN 54, 487, followed by a note of C. Nikolaides.

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of the adult grandchildren, EUR 2,054 to each of the minor grandchildren, who lived together with the deceased, as well as EUR 2,054 to the daughter-in-law, who also lived together with the deceased, while only EUR 1,467 to each of the minor grandchildren, who did not live together with the deceased and no amount at all to the son-in-law and the daughter-in-law, who lived in Canada, as, due to their long absence, they had not developed feelings of affection and love towards the deceased father-in-law, in order to feel grief and sorrow from his death. 276. In case of death, an exceptionally high amount was awarded for pain and suffering to the relatives of the victim in the following cases: – The three-member Adm. Court of First Instance of Kalamata, with its decision 4/2009,460 awarded EUR 550,000 to the husband of a lady who died two weeks after she gave birth to her fourth child because the doctors of the Public Hospital of Kalamata had left out of gross negligence part of the placenta in her womb, EUR 586,840 to each of her children EUR 440,205 to each of her parents, EUR 200,000 to her mother-in-law and EUR 293,000 to the brother. The Tripolis Adm Court of Appeal, with its decision 87/2011, has reduced the above amounts almost to half (EUR 1.2 million in total). – An amount of EUR 180,000 has been awarded against the Greek State to the wife and EUR 400,000 to the child of the 36-year-old governor of the Chinook helicopter that fell in 2004 while transporting the Patriarch of Alexandreia to Halikidiki. – The Athens Adm. Court of Appeal (decision 3538/2006) awarded EUR 380,000 to each parent and EUR 150,000 to the brother of a fireman who died during a mission for the extinction of a fire due to the defect of the fire truck.461 – Typical sums awarded to relatives for wrongful death range from EUR 80,000 to EUR 120,000 to each parent, from EUR 80,000 to EUR 95,000 to the son or daughter, from EUR 60,000 to EUR 80,000 to the widow, from EUR 40,000 to EUR 50,000 to each sibling, from EUR 15,000 to EUR 20,000 to each grandparent, from EUR 7,000 to EUR 10,000 to the father- or mother-in-law and from EUR 2,000 to EUR 3,000 to each of the grandchildren as well as to each of the sons- or daughters-in-law. 277. Concerning the development of the amounts awarded for pain and suffering over the last ten years, there is a clear rising tendency in the amounts awarded, but there is no uniformity in the amounts awarded. The extent of the amounts entirely depends on the facts of each case and on the discretion of the Courts, the members of which try to decide in an equitable manner based on the criteria exposed hereinabove.

460. Kalamata Adm. Court of First Instance 4/2009, published in NOMOS. 461. See http://www.dsanet.gr/Epikairothta/Nomologia/ste_1249_2010.htm.

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III. Compensation for Non-pecuniary Damage and the Principle of Proportionality 278. On the controversial issue of whether the principle of proportionality provided in Article 25 of the Greek Constitution constitutes a rule of substantive law which is directly applied by the Courts of substance and the violation of which creates the grounds for cassation of Article 559 no. 1 or no. 19 GCCP462 or the courts are not obliged to apply in any case the principle of proportionality, but they control its application only while checking the constitutionality of a law (in this last case, the principle of proportionality does not constitute a ground for cassation, but presupposes the existence of a cassation ground for the violation of a rule of law, during the examination of which it will be judged whether the principle of proportionality has been violated),463 the full bench of the Court of Cassation with its decision 6/2009 (full bench)464 followed the second view. A number of other decisions,465 subsequently published, have also followed this view. However, the discussion on the possibility of reviewing the amount awarded for moral harm or pain and suffering by the Court of Cassation is not over yet. The A1 Civil Chamber with decision 1178/2009466 addressed to the full bench of the Court of Cassation the issue of whether the determination of the exact extent of the said amount is reserved to the free judgment of the court of substance which cannot be reviewed by the Court of Cassation given that it is determined on the basis of facts and it is not a legal issue, or whether ‘moral harm’ and ‘reasonable pecuniary satisfaction’ are general legal notions, the specification and application of which is subject to the control of the Court of Cassation.

462. See for this view AP 132/2006 NoV 54 (2006) 825 = ChrID ΣT/2006, 409 = Arm 60 (2006) 757 = EllDni 47 (2006) 740 = ArchN 57 (2006) 662 = Dike International 2006, 876 = EpiskED 2006, 96. For AP 132/2006 and the discussion it generated (in English), see E. Dacoronia, Greece, in H. Koziol & B.C. Steininger (eds), European Tort Law 2006 (2007), pp. 249–251, nos 37–41. The tendency reflected in this decision is criticized by the Honorary Vice President of the Court of Cassation St. Paterakis, Issues of Moral Harm from Torts Committed Through the Media, EllDni 48 (2007) 14 f., who mentions that this approach will cause big problems and will burden the Court of Cassation with a lot of court actions. 463. See for this view AP 163/2007, supra (fn. 431); 634/2007, ChrID Z/2007, 974 = EllDni 48 (2007) 768; 1255/2007, published in ISOKRATIS and NOMOS. 464. ChrID Θ /2009, 705 = TPCL 2 (2009) 414 = Arm 63 (2009) 1162, followed by an approving note of S. Koumanis. For the judgment of the Court (in English), see E. Dacoronia, Greece, in H. Koziol & B.C. Steininger (eds), European Tort Law 2009 (2010), pp. 277–280, nos 24, 26–30. For the facts of the case, see AP 196/2007, published in NOMOS and (in English) E. Dacoronia, Greece, in H. Koziol & B.C. Steininger (eds), European Tort Law 2007 (2008), p. 313 no. 17. With said decision as well as with AP 195/2007, also published in NOMOS, the issue had been referred to the full bench of AP. 465. AP 738/2009, published in ISOKRATIS; 1086/2009, published in NOMOS; 1116/2009 ChrID I/2010, 443; 1928/2009 published in ISOKRATIS; 904/2010 NoV 59 (2011) 305; 1025/2010, published in NOMOS (confirming decision 5433/2008 of the EfAth and decision 5128/2007 of the Athens Multi-Member Court of First Instance). 466. TCPL 2 (2009) 1103 = Dike 40 (2009) 815 followed by approving remarks of K. Beis. For a brief summary of the facts and the judgment of the Court (in English), see E. Dacoronia, in H. Koziol & B.C. Steininger (eds), European Tort Law 2009 (2010), pp. 277–280, nos 25, 28–30).

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279. It has to be mentioned here that the Council of the State has also faced the issue of the character of the principle of proportionality. The Court, with its decision 1249/2010,467 addressed to a bench of seven members the issue of whether the amount for moral harm or pain and suffering awarded by the Administrative Courts of Appeal can be reviewed for violation of the principle of proportionality by invocation of the ground for cassation provided in Article 56 § 1 d of the P.D. 18/1989. The Council of the State in the above-mentioned decision held, like the Court of Cassation in its decision 6/2009 (full bench), that the principle of proportionality as a provision of law which delimits the law that imposes restrictions to the personal right is primarily addressed to the legislator. More specifically, in the field of tort law, Article 932 GCC provides that the Court can award a reasonable, according to its judgment, pecuniary satisfaction. Thus, the view of the majority of the Council of the State is that there is no field for an immediate application of the provision of Article 25 § 1 sentence d of the Greek Constitution when determining the extent of the pecuniary satisfaction for moral harm or pain and suffering of an organ of the State. Finally, the Court of Cassation sitting in complete full bench (forty judges present) and in majority held468 that the judgment of the courts as to the extent of non-pecuniary damages is based on consideration of facts (the degree of fault, the kind of infringement, the economic and social status of the parties, the rules of common experience and logic) and, therefore, is not subject to the control of the Court of Cassation.469 According to the minority (nine members) of the Court, however, the ‘reasonable’ amount of money awarded as compensation for moral harm constitutes a vague legal notion and can be reviewed by the Court of Cassation. 280. On whether the said judgment can be reviewed on the ground that the principle of proportionality, introduced as a legal rule by Article 25 § 1 of the Greek Constitution, has been violated, the majority of the Court is of the view that said constitutional provision is also addressed to the judiciary; i.e., the judgment of the Court should neither violate the principle of proportionality nor exceed the extreme limits of its discretionary authority, which constitutes a general principle of law and a means for the control of the judgment of the Court, not being submitted to the notion of proportionality. Accordingly, both the violation of the principle of proportionality, provided in Article 25 § 1 of the Constitution and the excess of the extreme limits of the Court’s discretionary authority constitute grounds for the control by the Court of Cassation according to Article 559 no. 1 and 19 GCCP. A minority, however, of thirteen judges shared the view that the excess of the extreme limits of the discretionary authority by the Court constitutes a case of violation of the principle of proportionality and does not constitute a basis for a different or independent (in comparison to the proportionality) reason for cassation. 281. It has been held furthermore by the majority that the amount to be awarded according to Article 932 GCC is decided (in principle without the possibility of 467. Council of the State 1249/2010 NoV 58 (2010) 1554. 468. AP 9/2015 (in complete full bench) ChrID IE/2015, 575–578. 469. Of this view AP 163/2007, supra (fn. 431); 132/2006, supra (fn. 462).

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review by the Court of Cassation) on the basis of the claims and the material provided by the litigants as proof; in any case, however, the principle of proportionality, as a general legal principle also deriving from the Constitution should not be violated. And this because a decision that awards, according to the free judgment of the court, a trivial or an excessive amount of money as an ostensibly reasonable compensation for the moral harm sustained trivializes in the first case – to what regards the victim – the respect of the value of the human being and in the second case – to what regards the tortfeasor – the right to its property; the court, getting involved in a dispute between private persons must keep a just balance between the conflicting interests, protecting in parallel the fundamental rights. The majority notes in this point that the notion of proportionality is more austere than the one of ‘reasonableness’, and as a consequence, the latter is necessarily contained in the notion of ‘proportionality’. This principle, i.e., that there must exist a tolerable relationship of proportionality between the means used and the aim sought by each measure which deprives a person of a fundamental right, such as the right to property, is, according to the Court, also reflected in Article 1 of the Fist Additional Protocol of the European Court of Human Rights. In view of all the above, the judgment of the court regarding the extent of the amount awarded as compensation for moral harm should be reviewed by the Court of Cassation if it violates the principle of proportionality but also when it is ascertained that the court exceeded the extreme limits of its discretionary authority. 282. Three of the Vice Presidents of the Court had the dissenting view that the principle of proportionality is not addressed to the judiciary and, accordingly, there can be no review of the decision of the court to what regards the determination of the extent of the amount of money awarded; only when there is an excess of the extreme limits of the Court’s discretionary authority, the decision of the Court can be reviewed. Eight members of the Court expressed the view that neither when there is a violation of the principle of proportionality nor when there is an excess of the extreme limits of the court’s discretionary authority the decision of the court can be reviewed. 283. The decision of the full bench of the Court of Cassation on the issue of whether the determination of the exact extent of the said amount is reserved to the free judgment of the court of substance which cannot be reviewed by the Court of Cassation given that it is determined on the basis of facts and it is not a legal issue, or whether the ‘reasonable pecuniary satisfaction’ is a legal notion, the specification and application of which is subject to the control of the Court of Cassation, has been long awaited. The existence of so many dissenting views on various issues, however, gives the justified, in our view, impression that the discussion on the subject matter will continue with the same zeal.470 470. Of the same view K. Calavros, The Control of the Court of Cassation with Regard to the Adjudication of Monetary Compensation According to Art. 932 GCC, NoV 63 (2015) 1906, who fears that these differentiations may bring the issue once again to the full bench of the Court of Cassation with unknown, as he points out, for the time being results.

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IV. Compensation for Moral Harm in Case of Violation of Contractual Obligations 284. In Greek law, the violation of a contractual obligation as such generates in principle only an obligation to pay damages and not an additional obligation for compensation for moral harm. The mere non-execution of the obligations of the contract as such cannot provoke moral harm, and, accordingly, no relevant compensation can be granted.471 In case, however, the violation of the contractual obligation constitutes at the same time – and independently from the existence of the contract – a tort (concurrence of contractual and delictual obligation), the provisions of tort (Articles 914 ff. GCC) may apply, in which case, provided that moral harm is sustained, compensation for such moral harm may be asked for.472 This will happen, e.g., if the ill-execution of the contract offends other legally protected goods of the creditor (such as his personality) and entails damage, other than the object of the contract. 285. It has been argued, however, in the Greek doctrine,473 that there is no reason to treat differently the anger and mental disturbance caused to a person outside of a contractual bond and the one caused if an existing contractual bond is violated when – as stressed by the said opinion – many times, the violation of the contract may cause mental situations worse in intensity than the ones caused due to a tort or in general provoked outside the contractual frame; the violation of a contract may offend the emotional world of the creditor when it completely overrules the programming of his life. This overruling may cause intense anger, grief, mental disturbance or even mental distress. In such cases, the offence of the emotional world has as consequence the offence of the creditor’s personality; this offence is illegal, as it is not based on a certain right of the debtor. Consequently, the creditor who has sustained such an offence to his emotional world is entitled according to Article 59 GCC to compensation for moral harm. It has been further argued474 that Article 59 GCC would have had no reason of existence if it only aimed at covering, in parallel to Article 932 GCC, offences to the personality deriving from a tortuous behaviour; accordingly, Article 59 GCC covers those offences to the personality that do not

471. See, i.a., M. Stathopoulos, Law of Obligations, General Part, § 8 III, pp. 528–529, no. 66 and § 15 II, p. 942, no. 8; M. Stathopoulos & A. Karampatzos, Contract Law in Greece (in English), pp. 49–50, no. 40 (b). 472. For more details (in English), see E. Dacoronia, Greece, in V.V. Palmer, The Recovery of Nonpecuniary Loss in European Contract Law, 2015. 473. D. Klavanidou, Protection of Personality and Mental Status (TPCL) 2 (2009) 1037, 1038; A. Kornilakis, Violation of the Contract as an Infringement to Personality, Episkopisi Emporikou Dikaiou (EpiskEmpD = Survey of Commercial Law) 2007, 28, 29; K. Pamboukis, Introd. Note to the Thessaloniki Court of Appeal decision 1199/2009, EpiskEmpD 15 (2009) 753. 474. K. Pamboukis, Pecuniary Compensation Due to the Offence of the Personality from the Violation of a Contractual Obligation, Remarks under the Decision of the Thessaloniki Court of Appeal 147/ 2005 EpiskEmpD 11 (2005) 175; K. Pamboukis, Introd. Note to the EfAth decision 1531/2011, supra (fn. 42).

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have a tortuous provenance, i.e., offences that derive from the violation of a contractual obligation. This view, however, is not the prevailing one in doctrine475 and jurisprudence. V. Persons Entitled to Compensation for Moral Harm 286. As stated in several decisions of the Greek Court of Cassation,476 it derives from Article 932 GCC that only the person who suffers an injury is entitled to compensation for moral harm. According to the position of the Greek legal literature and jurisprudence,477 also the person deprived of the use of his mind can suffer moral harm from the accident that caused the invalidity, given that, as a principle, such person feels the pain in his body or can feel emotions from the external world. 287. Other persons, who usually belong to the close family of the victim, are considered, as a rule, third persons, indirectly damaged, and are not entitled to such compensation, even if they suffer mental pain as a result of the unlawful act against their relative. Said third persons are outside the ambit of protection of the violated rule of law. Accordingly, it was held by the Court of Cassation478 that the parents as well as the brothers and sisters of the victim of a car accident caused exclusively by the defendant were not entitled to compensation for moral harm, though all of them, and in particular the sister, who was also his nurse, daily felt all the bitterness and disappointment from the severe injury of their son and brother respectively, who suffered very serious physical injuries (he remained totally paralysed, close to real death, and there was no amelioration to his situation though many years had elapsed since the accident). It has been held, though, that the case is different when the severe injury of the victim takes place before the eyes of the relative who suffers a

475. See K. Fountedaki, in Georgiades SEAK I, Art. 59 no. 5, who notes that if the above view was to be adopted, there would be a risk of excessively widening liability. The same author points out (in Georgiades SEAK I, Art. 59 no. 12) that it is doubtful whether it is consistent with the system of the GCC to accept that Arts 57 and 59 GCC apply whenever there is an offence of the emotional world and thus of the personality even in cases of violation of a contract. 476. See (i.a.) AP 1538/2001 EllDni 43 (2002) 705; 648/2002, supra (fn. 438); 752/2005, published in ISOKRATIS; AP 243/2011, supra (fn. 369); 798/2012, published in NOMOS as well as Piraeus Court of Appeal (General Division) 372/2010 NoV 58 (2010) 1716. For a brief summary (in English) of the facts and the judgments of the said decisions, see E. Dacoronia, Greece, in H. Koziol & B.C. Steininger (eds), European Tort Law 2002 (2003), p. 231, nos 39 f., 46 f.; European Tort Law 2005 (2006), p. 306, nos 52, 54; European Tort Law 2011 (2012), p. 278 no. 41, and European Tort Law 2010 (2011), p. 247, nos 21–25, respectively. For additional jurisprudence of AP and of the Courts of Appeal, see also A. Kritikos, Compensation for Car Accidents, Vol. I, § 20 IV, p. 592, no. 21, fn. 41. 477. See Ap. Georgiades, in: Ap. Georgiades & M. Stathopoulos (eds), Civil Code (1982) 932 no. 10; I. Karakostas, in Ap. Georgiades & M. Stathopoulos (eds), Civil Code, Vol. I A, 59 no. 7; A. Kritikos, Compensation for Car Accidents, Vol. I, § 20 II, p. 396, no. 8; D. Papadopoulou-Klamari, Pecuniary Satisfaction for Moral Harm of a Mentally Invalid, KritE 1997/1, 287; M. Stathopoulos, in: Ap. Georgiades & M. Stathopoulos (eds), GCC (1979), 299 no. 9; EfAth 8324/1987 NoV 35 (1987) 1255; 2461/1991 ArchN 42 (1991) 414. 478. AP 648/2002, supra (fn. 438).

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288–289

nervous breakdown;479 in this case, this breakdown is considered as a mental injury of the relative and a tort is committed against him from which he suffers a direct moral harm.480 288. AP481 adopts the above position of not awarding compensation for moral harm also for the deprivation of the sexual life of the victim’s companion. By way of exception, compensation for moral harm has been awarded by the Greek courts to the wife of the victim for the mental pain and grief she suffered, and she would suffer the whole of her life because of her husband’s impotency caused by the accident, on the ground of her having suffered and still suffering a direct moral damage482 or through application of Article 932 GCC by analogy.483 Also, an amount of EUR 14,673 has been awarded as moral harm to the wife of an injured person who had remained a so-called plant after an accident.484 289. These decisions are in line with the provision of Article 10:301(1) sentence 3 of the Principles of European Tort Law, prepared by the European Group on Tort Law (EGTL), which stipulates that non-pecuniary damage can also be the subject of compensation for persons having a close relationship with a victim485 suffering not only a fatal but also a very serious non-fatal injury as well as with Article VI. -2:202 (1) of the Draft Common Frame of Reference (DCFR), prepared by the Study Group on a European Civil Code and the Acquis Group, which, using a similar wording, stipulates that non-economic loss caused to a natural person as a result of another’s personal injury or death is legally relevant damage if at the time of injury that person is in a particularly close personal relationship with the injured person.486

479. For the jurisprudence regarding compensation for moral harm of a person who suffered a nervous breakdown because of the death of a relative, see A. Kritikos, Compensation for Car Accidents, Vol. I, § 17 I, p. 343, no. 5, fn. 9. 480. EfAth 7246/1986 EllDni 29 (1988) 134; Piraeus Court of Appeal (General Division) 372/2010 NoV 58 (2010) 1716 (for a brief summary (in English) of the facts and the judgments of said decision as well as a short commentary thereof, see E. Dacoronia, Greece, in H. Koziol & B.C. Steininger (eds), European Tort Law 2010 (2011), pp. 256–258, nos 21–25). Reference is made by the Court to the Court of Appeal of Dodekanese 216/2005, published in NOMOS; A. Kritikos, Compensation for Car Accidents, Vol. I, § 20 IV, p. 595, no. 24. 481. AP 553/2014, published in NOMOS (for a brief summary (in English) of the facts and the judgments of said decision as well as a short commentary thereof, see E. Dacoronia, Greece, in E. Karner & B.C. Steininger (eds), European Tort Law 2014 (2015), pp. 236–238, nos 20, 22, 24–25). 482. EfAth 6055/1989 ArchN 41(1990) 776; 3496/2001 ArchN 54 (2003) 67, Athens Single Member Court of First Instance 5017/2000 EpSygkD 2000, 286; 2288/2004 ChrID E/2005, 620. A. Kritikos, Compensation for Car Accidents, Vol. I, § 20 IV, p. 593, no. 22, fn. 43, considers the approach of said decisions not correct. 483. Athens Single Member Court of First Instance 2288/2004 ChrID E/2005, 620. 484. Patras Court of Appeal 798/1999 EpSygkD 1999, 625. 485. According to the EGTL, as close relationship is meant any relationship ‘which bears at least some resemblance to a “family” one’ (see W.V. Rogers, in European Group on Tort Law, Principles of European Tort Law, Text and Commentary, Vienna 2005, p. 175). 486. For an analysis of Art. VI. – 2:202 (1), see C. Von Bar & E. Clive (eds), Principles, Definitions and Model Rules of European Private Law, DCFR, Full edn., Vol 4, 2009, pp. 3225, 3226.

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290. The above articles proposed by the two European Groups can be an example for an amendment of the GCC, in order to introduce an article which would allow compensation for non-pecuniary damage for persons having a close relationship with a victim not only when the latter suffers a fatal injury but also a very serious non-fatal one. In this way, the Greek Courts will not need to have recourse to analogy in order to render justice. VI. Monetary Compensation for Moral Harm or Pain and Suffering in Case of Workers’ Accident 291. According to L. 551/1915 (Article 16 § 1), the prejudiced person in an accident at work is entitled to file an action for full damages only if the accident is due to dolus of the employer or his auxiliary performers or if the special requirements dictated by the law for the safety of the workers have not been met. The provisions of Article 16 § 1 L. 551/1915 refer to damages for property damage and not to monetary satisfaction for moral harm or pain and suffering. There is no provision in the above-mentioned law regulating this kind of monetary satisfaction; hence, according to the Greek jurisprudence, the general provisions (Articles 298, 299, 914 and 932 GCC) apply and compensation for moral harm or pain and suffering is owed also in case of workers’ accident when the conditions for tortuous liability are met.487 Accordingly, in order that the employee asks for monetary satisfaction for moral harm for an accident occurred in the course of his work, the special negligence which is required for the observance of the safety conditions according to Article 16 § 1 L. 551/1915 is not required. Any negligence in the meaning of Article 914 GCC of the employer or his auxiliary performers that contributed to the occurrence of the accident suffices.488 It is well established in the Greek jurisprudence that workers who sustained damage at work may ask for damages for moral harm, even if the accident cannot be attributed to intention on the part of either the employer or its auxiliaries or even if the provisions on the safety of the workers at work are not violated. There may be such a commitment of a tort even if there is no special negligence according to Article 16 § 1 L. 551/1915, if the accident is the consequence of not respecting the terms which, despite the fact that are not provided by a special provision of law, are, however, imposed by the common perceptive, the obligation of providence and the required in transactions prudence. Such a 487. AP 1117/1986 (in full bench). 488. AP 1185/1993 EllDni 36 (1995) 362 = EErgD 54 (1995) 232; 1380/2001 EllDni 44 (2003) 708 = ChrID A/2001, 797; 1544/2002 published in ISOKRATIS; 1438/2002 NoV 51 (2003) 1036; AP 60/2003 NoV 51 (2003) 1627; 408/2003 ChrID Γ/2003, 657–660; 1305/2005, published in ISOKRATIS; 610/2009, published in NOMOS; 73/2007 NoV 55 (2007) 1149; 1122/2007, published in NOMOS; 1045/2007, supra (fn. 429); 1168/2007 NoV 56 (2008) 1249; for a brief summary (in English) of the facts and the judgments of the said decisions as well as a short commentary thereof, see E. Dacoronia, Greece, in H. Koziol & B.C. Steininger (eds), European Tort Law 2005 (2006), pp. 323–324, nos 59–61 and European Tort Law 2007 (2008), pp. 319–321, 325–328, nos 35–40, 54, 57–59. For the issue of compensation for moral harm or for pain and suffering in case of workers’ accidents in English, see also E. Dacoronia, in H. Koziol & B.C. Steininger (eds), European Tort Law 2003 (2004), 225 f., nos 46–49.

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tort thus exists, for example, when the employer omits to draw the employee’s attention regarding the way of executing the assigned work in order for any relevant danger for the employee’s health or life to be avoided. However, there is no such obligation of the employer when the employee knows, as of his long-term occupation in the same kind of work, the way to execute his work safely, the measures that he should take and the rules he should follow in order for any danger to be avoided. In such a case, the employer’s warning proves to be useless. VII. Compensation for Moral Harm in Case of Wrongful Birth 292. Though there is a vivid discussion in legal literature in Greece regarding medical malpractice489 and cases of wrongful birth and wrongful life,490 till now the Greek courts have not explicitly recognized claims for damages in the latter cases.491 Worth mentioning, however, are two decisions of the Court of Appeal of Thessaloniki and the Court of Appeal of Larissa. Both Courts have tackled the issues, though not awarding damages in the particular cases brought before them for reasons of lack of causation or for lack of existence of the right to proceed to a legal abortion nor using the terms wrongful birth or wrongful life. More specifically, the Court of Appeal of Thessaloniki set the legal basis for the claim of damages in cases of wrongful birth, though it held that in the case judged there was no causal relationships between the alleged unlawful and unlawful behaviour and the damage caused, i.e., the birth of a child with disability, and that there would be no causality even if the alleged damage was not the above mentioned but the deprivation of the right of information of the parents and the consequent deprivation of their right to choose to proceed or not with an abortion. 293. The decision of the Court of Appeal of Larissa affirms the possibility of compensation for moral harm of parents for the deprivation of their right to choose the abortion or not. 294. In 2005, the Court of Appeal of Thessaloniki492 set the legal basis for a claim for damages in cases of wrongful birth, though it held that in the particular case there was no causal relationship between the alleged unlawful behaviour and the damage caused, i.e., the birth of a child with disability in the particular case 489. See indicatively A. Charalambakis, Medical Liability and Ethics, 1993; K. Fountedaki, Human Reproduction and Civil Medical Liability, 2007; K. Fountedaki, Civil Medical Liability, 2003; K. Fountedaki, Civil Medical Liability after L. 2251/1994, KritE 1996/2, 179 f.; K. Fountedaki, The Issue of Causation in Medical Liability, EllDni 35 (1994) 1226 f. 490. See K. Fountedaki, Issues of Civil Medical Liability in Case of Birth of a Person with Serious Illness or Disability (Wrongful Life), Digesta 2004, 471 f; E. Fragoudaki, The Legal Treatment of Applications of Biogenetics: Especially in Private Law Sector, 2008; M. Stathopoulos, Damages and Protection of the Personality of an Invalid Child, ChrID Θ/2009, 97, Emm. Trouli, Medical Liability for Wrongful Life and Wrongful Birth, Digesta 2008, 384 f., D. Tsiros, Medical Liability: Damages for a Child Born Invalid Because of a Medical Fault Which Deprived the Mother from Aborting, EllDni 45 (2004) 61 f. 491. As also mentioned in the recent above-mentioned article of Emm. Trouli, Digesta 2008, 424. 492. Thessaloniki Court of Appeal 2384/2005, published in NOMOS.

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judged, and that there would be no causation even if the alleged damage was not the above mentioned but the deprivation of the right of information of the parents and the consequent deprivation of their right to choose to proceed or not with an abortion. 295. In particular, according to the case brought before the Court, the plaintiff gave birth to a baby girl, who unfortunately suffered from very severe medical illnesses. She and her husband, acting on behalf of themselves and of their handicapped daughter, filed a claim against the obstetrician, who had undertaken the supervision and treatment of the pregnancy, claiming pecuniary satisfaction for moral harm due to the doctor’s negligence. Particularly, the plaintiffs accused the defendant of omitting to consult them as to whether to proceed with the appropriate prenatal medical examinations in order for the disfigurements of the foetus to be predicted, and to consequently proceed to an abortion. The Court of First Instance accepted their action and awarded the amount of EUR 100,000 to each plaintiff. 296. The Court of Appeal, accepting the appeal of the defendant, held that it derives from Article 914 GCC that the person who unlawfully and culpably causes damage to another is liable to compensate him, and from Article 932 GCC that the court, in the case of a tort, and in particular in the case of an offence to the health, honour, chastity or liberty of a person, may adjudicate pecuniary satisfaction for moral harm to the person who was offended by the tort. The said claim for compensation for moral harm is recognized, in principle, to the person who was directly offended by the tort. The Court also held that it derives from Articles 127, 1510 § 1 and 1518 § 1 GCC that the parents are entitled to defend the interests of their child. 297. In addition, according to the above-mentioned Articles 914 and 932 GCC and their combination with the provisions of Articles 298 and 299 GCC, it derives that, for the award of pecuniary satisfaction to the victim for the moral harm he sustained, the formation of a moral personality and of a sentimental world is essential, so that the person in question can receive the effects of the external world and feel the emotion from the tort committed against him. However, the court may restore not only the present but also the future moral harm, as it may also restore the future property damage (Article 298 GCC), provided that at the first hearing of the case, it is rather certain that the damage will occur in the future and that its extent can already be defined. However, the Court of Appeal concluded that the essential causal relationship between the behaviour that caused the damage and the damage was not evidenced in the case brought before it; thus, it quashed the judgment of the Court of First Instance. 298. In a second case brought before the Larissa Court of Appeal in 2007,493 the plaintiffs, who were married and were already expecting a child, drew up a medical 493. Larissa Court of Appeal 544/2007 EllDni 49 (2008) 289. About the said decision, see also (in English) E. Dacoronia, Greece, in H. Koziol & B.C. Steininger (eds), European Tort Law 2012 (2013), p. 301, nos 48–50.

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services contract with the defendant doctors, by which the latter undertook the prenatal examination of the foetus. However, the said defendants, due to their negligence, did not find out that the foetus was suffering from a malformation of the left hand, and did not inform the parents accordingly. The child was born with the said malformation, and the parents filed an action against the doctors claiming pecuniary satisfaction of their moral harm due to the violation of their personality right (Article 57 GCC), alleging that they would have proceeded to an abortion if the doctors had not been negligent and had informed them about the disability of their child. The Court of First Instance rejected the action. 299. The Court of Appeal, confirming the judgment of the Court of First Instance, held that one of the elements that constitute the personality of the individual is the mental health and the emotional world. The emotional world is usually derivatively violated, thus, as a consequence of an unlawful act which primarily offends the person insulted and creates mental pain. Additionally, the sentimental world is also violated by an unlawful act, which offends another person with whom the person who felt the pain is closely connected. These are the reflective consequences of the violating act. Thus, a third person who is closely connected to the person directly offended can also file an action for violation of his sentimental world. Additionally, if a pregnant woman, to whom the law preserves the right to proceed to an abortion, is impeded from proceeding to the said legal choice, then her personality is unlawfully violated according to the provision of Article 57 GCC, and if this violation is culpable, then she is entitled to claim the satisfaction of her moral harm (Article 59 GCC). 300. However, the Court held that the action was not legally grounded due to the fact that even if it was assumed that, despite the fact that the defendant doctors were scientifically capable of finding the above malformation and of relevantly notifying the parents, they did not act so due to their negligence, the parents’ personality right was not violated, because they would not have had the right to proceed to an abortion, given that the disability in question did not constitute a ‘severe abnormality’ that would lead to the birth of a ‘pathological child’, according to the legal notion of the term; only cases where the child to be born will suffer from a significantly severe illness can be conceptually included in the above notion. 301. It has to be mentioned here that the rule under Greek law is that the artificial termination of pregnancy is prohibited, and that is why it is punished with imprisonment, as provided in Article 304 §§ 1–3 GPC. As an exception, the artificial termination of the pregnancy (always with the consent of the pregnant woman and effected by a doctor obstetrician – gynaecologist with the participation of an anaesthesiologist in an organized nursing unit) is legally justified in the cases provided in Article 304 § 4 GPC. One of the cases that justify the artificial termination of the pregnancy according to Article 304 § 4 GPC is the eugenic indication, i.e., the existence of indications of a severe abnormality of the foetus, found out by modern means of prenatal diagnosis, which entail the birth of a pathological child and the duration of the pregnancy does not exceed twenty-four weeks. The artificial interruption of pregnancy is also justified and not an unlawful act according to said 135

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paragraph if either of the following cases occurs: (a) twelve weeks of pregnancy have not been completed; (b) there is an inescapable risk to the life of the pregnant woman or a risk of serious and lasting harm to her physical or mental health, to be certified by a competent doctor; (c) the pregnancy is a result of rape, seduction of an underage, incest or abuse of a woman incapable of resisting, and under the condition that nineteen weeks of pregnancy have not been completed. 302. In 2011, AP494 also rejected the claim of a handicapped child for its own moral harm for lack of causation, as, according to the Court, the malformation was not due to the doctor. 303. AP in its decision 10/2013495 adopted the view expressed in the abovementioned decision 544/2007 of the Court of Appeal of Larissa, as well as in subsequent decisions of the Court of Appeal of Piraeus496 as well as of the Courts of First Instance of Chania, Crete497 and of Piraeus,498 according to which, in cases of ill-advice regarding prenatal exams, which if they had been correctly given would have led to the termination of the pregnancy instead of the birth of a severely handicapped child, not only the mother but also the father who felt grief or pain can ask for compensation of his ‘moral harm’ on the ground that his emotional world has been offended;499 and this irrespective of the fact that the unlawful act was not directed against him but against another person, his wife. According to the said view, in case of an offence of the emotional world, the action for the protection of the personality can also be filed by a third person, a relative (the father), closely connected to the one directly offended (the mother). The Court of Cassation confirmed the decision of the Piraeus Court of Appeal 22/2011,500 which awarded the amount of EUR 250,000 to each spouse as moral harm because of the offence to their personality.501 304. Greek legal literature is divided on the subject matter. According to one view,502 the thought found in the above decisions for compensation of the ‘moral 494. AP 154/2011ChrID IB/2012, 591. 495. ChrID IΓ/2013, 415 = EllDni 54 (2013) 1347 f., followed by a note of the Honorary Vice President of the Court of Cassation A. Kritikos, 1352 f (for a brief summary (in English) of the facts and the judgments of said decision as well as a short commentary thereof, see E. Dacoronia, in E. Karner & B.C. Steininger (eds), European Tort Law 2013 (2014), pp. 275–280, nos 6–16). 496. Piraeus Court of Appeal 22/2011, published in ISOKRATIS. 497. Chania Multi-Member Court of First Instance 226/2009 ChrID IA/2011,182, which awarded EUR 400,000 as moral harm to each parent. 498. Piraeus Multi-Member Court of First Instance 4591/2009, Digesta 2009, 417. 499. Contra Athens Multi-Member Court of First Instance 2487/2004, Digesta 2008, 475 and Thessaloniki Multi-Member Court of First Instance 2839/2008 EllDni 49 (2008) 289, according to which none of the parents are entitled to compensation for moral harm, as both being third parties, incurring an indirect damage. 500. Published in ISOKRATIS. 501. The Piraeus Multi-Member Court of First Instance with its decision 4591/2009, Digesta 2009, 417 had awarded EUR 350,000 as moral harm to each parent. 502. M. Kanellopoulou-Botti, The obligation of Giving Genetical Information During the Prenatal Control. In particular, the position of the presumed biological father, Digesta 2008, 376; L Kitsaras, Wrongful Birth: A Claim of the Parents Against the Doctor for Monetary Compensation Because

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harm’ caused to a person (the father) not because of a direct offence to his personality but through the offence of the personality of another person (the mother) with whom the said person has a close relationship is completely foreign to Greek law; thus, the father should not be entitled to compensation for moral harm. According to a second view,503 the father is entitled to such compensation, though not on the ground given by the Courts, but because he has suffered, like the mother, direct damage. According to this view, it derives from the community of life of the spouses during marriage, the equality of spouses, the non-establishment by marriage of a parental relationship between the spouses and from the interpretation of the rule according to which spouses have to make joint decisions about everything, that the relationship of the child cannot be considered direct towards the mother and indirect towards the father. According to a third view,504 the right which has been violated is the absolute right of both parents to family planning and in particular their right to have a healthy child, and, therefore, each of them is entitled to file a claim based on the violation of said right. 305. Regarding wrongful conception, there is no decision, to our knowledge, till now. It has been argued, however, in legal literature505 that in case of birth of a healthy, but not desired, child: (a) the parents should be compensated for their damage in case their financial capacities do not allow them the upbringing of a child and (b) the mother should be compensated for the moral harm suffered because of the undesired pregnancy. VIII. Additional Compensation for Disability or Disfiguration 306. We would like to mention here the importance of the application of the provision of Article 931 GCC by the Courts in the award of compensation to the victim. The said provision reads as follows: ‘The disability or disfiguration caused to the victim is particularly taken into consideration in the award of damages to be paid, if this disability or disfiguration affects the victim’s future.’506 According to the Court of Cassation,507 Article 931 GCC introduces an independent claim for the

503. 504. 505. 506. 507.

of the Loss of the ‘Chance’ of Interruption of the Pregnancy? ChrID IA/2011, 166–173. For a summary of this article (in English), see E. Dacoronia, in K. Oliphant & B. Steininger (eds), European Tort Law 2011 (2012), pp. 302–303, nos 45–47. P. Nikolopoulos, ‘Wrongful Birth’ and Offence to the Parents’ Personality, TPCL 4 (2011) 812–820. For a summary of this article (in English), see Dacoronia, supra (fn. 502), pp. 303–304, nos 45–47. Kl. Roussos, Medical Liability Due to Failure to Diagnose Grounds for the Appropriate Interruption of Pregnancy (Thoughts on the Occasion of the Decision 10/2013 of the Court of Cassation), ChrID IΓ/2013, 466–472. I. Androulidaki-Dimitriadi, The Duty to Inform the Patient, 1993, 417; Emm. Truli, Medical Liability for Wrongful Life and Wrongful Birth, Digesta 2008, 408 under fn. 84. For the relevant legal literature and jurisprudence, see (in English) E. Dacoronia, Greece, in H. Koziol & B.C. Steininger (eds), European Tort Law 2002 (2003), 240–242 and European Tort Law 2006 (2007), 252–255. AP 18/2008 (in full bench) ChrID H/2008, 783; AP 1073/2001 ChrID A/2001, 700 ff., followed by a note of G. Iatrou; AP 289/2004 EEN 2004, 565; 197/2004 ChrID Δ/2004, 517; 122/2006 ChrID

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compensation of future pecuniary damage, for the establishment of which particular incidents, other than those required for the establishment of the claims based on Articles 929 and 932 GCC, are required. These particular incidents have to determine how the disability or disfiguration of the victim affects his future,508 that the damages sought are the specific result of the disability and how this specific result would affect the professional, economic and social future of the victim. The aim of the provision is to offer the injured party a lump sum, in addition to the amount awarded for damages. This lump sum goes beyond the damage awarded according to Article 929 GCC, on the ground that the invalidity or disfiguration will cause in the future difficulties in the injured person’s professional-economic progress. 307. According to AP,509 by the term ‘disability’ in Article 931 GCC, the legislator meant a certain lack of the corporal, mental or psychical integrity of a person, by the term ‘disfiguration’ any substantial distortion of the external appearance of the person, which is determined by the notions of life and not necessarily by medical science and by the term ‘future’ the professional, economic and social evolution of the person. Certainty of a negative influence to the future of the person is not required. A simple possibility, according to the usual course of events, suffices. In the professional-economic field, the invalidity or disfiguration of the person, according to the dictations of common usage, constitutes a negative element in everyday competition for such a person’s economic evolution and promotion. These negative consequences are, according to the Court of Cassation, even more intense in periods of economic difficulties and tightness in the business market; those who have an invalidity or disfiguration have a disadvantage, and therefore they bear a bigger risk than their healthy colleagues to be found without a job. 308. The Court stresses that the monetary performance provided by Article 931 GCC does not constitute damages, given that damages as a term are connected to the invocation and proof of material damage, i.e., of a difference between the patrimonial status after the damaging event and that which would have existed without it.510 Further, the inability to work as a consequence of the disability or disfiguration, as long as it causes material damage, constitutes a basis for the claim provided by Article 929 GCC (claim for loss of profit). However, the disability or disfiguration as such may not necessarily cause pecuniary damage to the victim of a tort. This is the case of a minor who has not entered the productive procedure; he cannot ΣT/2006, 504; 526/2006 EllDni 47 (2006) 998; 670/2006 ChrID ΣT/2006, 698; 1874/2006 ChrID Z/2007, 316; 1214/2011 TCPL 4 (2011) 104 (for a brief summary (in English) of the facts and judgments of said decisions as well as a short commentary thereof, see E. Dacoronia, Greece, in H. Koziol & B.C. Steininger (eds), European Tort Law 2008 (2009), pp. 331 f., nos 23–26; European Tort Law 2001 (2002), pp. 279 f., nos 36–38; European Tort Law 2004 (2005), pp. 330–331, nos 11–15 and p. 338, nos 39, 40; European Tort Law 2006 (2007), pp. 252–255, nos 42–51; in K. Oliphant & B.C. Steininger (eds), European Tort Law 2011 (2012), pp. 287–290, nos 18–26, respectively). 508. As future is meant the economic future. According to AP 1631/2010, NoV 59 (2011) 993 = TPCL 4 (2011) 993, it is not allowed to take into consideration also the need of the victim to get married. 509. AP 1073/2001; 670/2006; 1874/2006; 1214/2011, all of them supra (fn. 507). 510. Cf. AP 185/2015, however, according to which the amount provided according to Art. 931 GCC is given as damages for pecuniary damage and more particularly for future damage.

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yet invoke material damage caused by the disability or disfiguration, as it cannot be predicted that the disability or disfiguration will cause him a specific pecuniary damage. It is certain, however, that the disability or disfiguration will definitely have a negative impact on the minor’s social and economic development, depending on its degree and the specific circumstances (age, sex, inclinations and wishes of the victim). Given that such a negative impact is certain, there is no need to specify how the disability or disfiguration will particularly influence the minor’s life and the consequences such a disability or disfiguration entails to the social and economic future of the victim what is crucial and most important is the fact of the invalidity or disfiguration as damage to one’s body or health, being an independent legal good, which is also constitutionally protected according to Article 21 §§ 3 and 6 of the Greek Constitution, not only as far as the relationships of the citizens towards the State are concerned, but also the relationships of the citizens inter se. This protection is not necessarily connected with the inability to acquire economic profits or advantages. 309. The Court concludes from the foregoing that Article 931 GCC provides for the award of reasonable compensation exactly because of the disability or disfiguration itself; a connection to a specific material damage is not needed, leaving aside that such material damage cannot be defined either. The amount of reasonable compensation awarded according to Article 931 GCC is determined by the kind and consequences of the disability or disfiguration on the one hand and by the age of the victim on the other. The Court notes that the claim of Article 931 GCC is different from: (a) the claim for loss of profit provided in Article 929 GCC, which is necessarily connected to invoking and proving specific material damage caused by the victim’s inability to work; and (b) the compensation for moral harm provided by Article 932 GCC. All of the above claims can be exercised either cumulatively or individually since they are independent, and the establishment of one of them does not necessarily presuppose the existence of one of the others.511 Accordingly, and as an example, AP has confirmed with its decision 765/2007,512 decision 627/2005 of the Larissa Court of Appeal, which had awarded to the victim of a car accident EUR 50,000 on the basis of Article 931 GCC and EUR 60,000 as pecuniary compensation for his moral harm. 310. It has to be noted here, however, that the prevailing doctrinal view513 considers that Article 931 GCC does not introduce an independent claim for the compensation of a future pecuniary damage, which is not covered by Article 929 or

511. Similarly AP 2072/2006, published in ISOKRATIS. 512. Published in NOMOS. 513. Expressed by K. Beys, Remarks under EfLarissa 694/1996, Dike 29 (1998) 281; Ph. Doris, note under AP 840/1998 NoV 48 (2000) 38; Ap. Georgiades, Law of Obligations, General Part, § 62, p. 715, no. 97; G. Georgiades, in Georgiades SEAK I, Art. 931 no. 3; A. Vossinakis, in Ap. Georgiades & M. Stathopoulos (eds), Civil Code (1982), 931, no. 1, and shared by Jatrou, in a note under AP 1073/2001, supra (fn. 507).

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Article 932 GCC,514 given that on the basis of these two articles full damages can be obtained. According to this view, Article 931 GCC has only an instructive character, intending to instruct the judge to take particular consideration of the disability or disfiguration when determining the amount of damages to be awarded for pecuniary damage or moral harm.515 The invalidity or disfiguration, that are forms of the harm to the body and to the health (Article 929 GCC), can be fully covered to what concerns their pecuniary consequences by Article 929 and to what concerns the nonpecuniary ones by Article 932 GCC, as the heavier the harm to the body or to the health, the bigger the moral harm of the victim; as a consequence, the judge has the discretion to award a bigger amount of money for the compensation of the moral harm. IX. Compensation of Moral Harm of Legal Entities (Articles 57, 59, 932 GCC) 311. It is well established in Greek doctrine516 and jurisprudence517 that not only physical persons but also legal entities are entitled to compensation for moral harm, provided that the commercial credit capacity, the fame or the commercial future of the legal entity have been infringed, on the ground that also legal entities have a personality and its diminution can entail the application of the provisions of Articles 57, 59, 298, 299 and 932 GCC. The satisfaction of its moral harm may consist in the payment of a monetary amount, in a publication or in anything else dictated by the circumstances. Accordingly, the EfAth awarded a Bank the amount of EUR 35,000 as moral harm when one of its employees diffused to journalists slanderous rumours according to which executives of said Bank were involved in the manipulation of the Stock Exchange. According to the Court, the false presentation to the 514. In her remarks under AP 123/2010 (TCPL 4 (2011) 748, 749), E. Zervogianni is of the view that the award of an additional amount according to Art. 931 GCC for the offence of the health as such is made in the frame of Art. 932 GCC. 515. For the relevant legal literature and jurisprudence (in English), see E. Dacoronia in H. Koziol & B.C. Steininger (eds), European Tort Law 2001 (2002), pp. 279, 280 nos 36–40, European Tort Law 2002 (2003), pp. 240–242, nos 34–37 and in European Tort Law 2004 (2005), pp. 338, 339, nos 39–41. 516. See Ap. Georgiades in Ap. Georgiades & M. Stathopoulos, Civil Code, 932 no. 13; P. Kornilakis, Law of Obligations, Special Part I, § 106 8, 649; M. Stathopoulos, Law of Obligations, General Part, § 8 III, pp. 532–533, no. 73, where also relevant jurisprudence is noted. See also from the most recent literature, G. Georgiades, SEAK, I, Art. 932 no. 22 and for a brief presentation of the issue K. Christakakou, note under Larissa Court of Appeal 15/2005, NoV 53 (2005) 1298, 1299 (for a brief summary (in English) of the facts and the judgments of said decision as well as a short commentary thereof, see E. Dacoronia, in H. Koziol & B.C. Steininger (eds), European Tort Law 2005 (2006), pp. 321–323, nos 53, 56, 58). 517. AP 356/2010, published in NOMOS (for a summary of the decision, see NoV 58 (2010) 1755) (for a brief summary (in English) of the facts and the judgments of said decision as well as a short commentary thereof, see E. Dacoronia, in H. Koziol & B.C. Steininger (eds), European Tort Law 2010 (2011), pp. 247–248, nos 2–4); 179/2011 TPCL 5 (2012), 125; Piraeus Court of Appeal 74/2011 DEE 17 (2011), 691; EfAth 825/2007 EllDni 48 (2007) 941–953; Larissa Court of Appeal 15/2005 NoV 53 (2005) 1297.

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Press that the Bank was involved in economic scandals constituted an offence to its personality for which compensation had to be paid.518 312. According to the provisions of Article 216 GCCP, in order that the moral harm is repaired, the offended legal persons have to mention that their commercial faith, professional reputation, and, generally, their commercial future have been offended through the unlawful offence of their personality.519 These facts have to be proved, as the moral harm of a legal person does not concern an internal feeling, which does not need proof, due to the fact that it is traced in the internal world and is judged with the perceptions of human logic. The moral harm of a legal person has a material substance. X. Compensation for Pain and Suffering 313. As already mentioned, according to Article 932 GCC, the courts, in the case of death caused by unlawful and culpable behaviour, may award a reasonable amount of money to the family of the victim as compensation for pain and suffering. The closest relatives, who are entitled to compensation for pain and suffering according to the above, are qualified only if they showed love and affection to the deceased, while he was alive, and the deceased had the same feelings towards them. It is irrelevant whether such persons cohabited with the victim or not, as long as they were closely connected to him and suffered as a result of his loss.520 In any case, it is a matter of fact, judged by the courts on the merits (i.e., Courts of First Instance, Courts of Appeal), whether the said persons had indeed been closely connected with the deceased. Should it be ascertained that no ties of love and affection existed between them and the deceased, no compensation for pain and suffering is awarded.521 A. Persons Entitled to Compensation for Pain and Suffering 314. As it is correctly pointed out,522 the legislator deliberately does not define the meaning of the term ‘family of the victim’ in Article 932 GCC ‘obviously 518. For the facts of the case, see AP 356/2010, supra (fn. 517). 519. See also AP 1156/2015, published in ISOKRATIS, confirming the decision of the Court of Appeal which awarded a church (a public corporation) compensation for its moral harm amounting to EUR 5,000 against the contractor who negligently caused the collapse of the dome during restoration works on the ground that the collapse of the dome, which had as a consequence the loss of the historical and archaeological value of the church, caused deep sorrow to the legal entity and to the parishioners. 520. AP 398/2004, published in NOMOS. 521. AP 21/2000 (full bench), NoV 49 (2001) 599 f. 522. Doris, note under decision AP 21/2000 (full bench), supra (fn. 521) = ChrID A/2001, 117 f., followed by a note of L. Kitsaras (for a brief summary (in English) of the facts and the judgments of said decision as well as a short commentary thereof, see E. Dacoronia, in H. Koziol & B.C. Steininger (eds), European Tort Law 2001 (2002), pp. 280–283, nos 41, 45–46, 50–53); AP 1141/2007 EllDni 48 (2007) 1023 f.); for a brief summary (in English) of the facts and the judgments of said

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because it did not want to delimit in an obligatory way the boundaries of an institution, which, because of its nature, is submitted to the influence of the social differentiations in the course of time’. To the issue of whether the judge has to define the ‘family’ in each particular case, taking into consideration the facts of the particular case or if he has to find out the ‘true’ meaning of the term ‘family’, i.e., what the society considers as ‘family’ at the time of the implementation of Article 932 GCC, irrespectively of the concrete facts of the case, we are of the opinion that the legislator has not defined the said term, so that the Court can take into consideration what the society understands as ‘family’ in a particular period of time; the notion of ‘family’ at the beginning of the twentieth century is not the same with the notion of ‘family’ at the beginning of the twenty-first century, when couples without marriage, or even couples of the same sex may be considered as families. This, however, does not mean that the notion of ‘family’ changes depending on each particular case that is presented to the Court in the same period of time. The Court must give a definition of the ‘family’, not according to the particular facts of the case, but according to what the society considers as ‘family’ at the time of the implementation of Article 932 GCC.523 This is, according to our view, what the legislator wanted by not defining the term ‘family’ himself.524 315. Much discussion has taken place regarding the meaning of the term ‘family’ in order to fix the circle of persons who may be entitled to compensation for pain and suffering.525 The Court of Cassation, in a series of decisions,526 repeats that to the family of the deceased belong: the spouse,527 the descendants, the ascendants, the siblings, as well as the sons- and daughters-in-law528 and the fathers- and

523. 524.

525. 526.

527.

528.

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decision as well as a short commentary thereof, see E. Dacoronia, in H. Koziol & B.C. Steininger (eds), European Tort Law 2007 (2008), pp. 323–325, nos 46, 48, 51; I. Giarenis, The Jurisprudential Configuration of the Notion of Family in the Award of Pecuniary Compensation for Pain and Suffering, EllDni 54 (2013) 318–339. See also Doris, supra (fn. 522). Contra Kitsaras, supra (fn. 522), who is of the view that trying to find out the ‘true’ meaning of the term ‘family’, not in relation to the facts of each particular case, is not compatible with the elasticity the legislator wanted to give to the term ‘family’ in order to meet the needs of the changing social conditions. For the notion of the term ‘family’ in Art. 932 sent. c’, see also, i.a., P. Kornilakis, Law of Obligations, Special Part I, § 106 8 II 2, 649 f. AP 21/2000 (full bench), supra (fn. 521); 447/2000, supra (fn. 277); 1114/2000 EllDni 41 (2000) 1593; 723/2002 ChrID B/2002, 602, 603; 868/2002, published in NOMOS; 598/2005 SESygkD 2005, 484 (for a brief summary in English of the facts and the judgments of said decisions as well as a commentary thereof, see E. Dacoronia, in H. Koziol & B.C. Steininger (eds), European Tort Law 2001 (2002), pp. 280–283, nos 41–43, 45–48, 50–53; European Tort Law 2002 (2003), pp. 245–246, nos 53–59; European Tort Law 2005 (2006), pp. 324–327, nos 63, 68, 74, respectively). According to AP 520/2009, published in NOMOS, also the wife who is separated from her husband belongs to the family of the deceased husband, as separation does not put officially an end to this quality. For a brief summary (in English) of the facts and the judgments of said decision as well as a short commentary thereof, see E. Dacoronia, in H. Koziol & B.C. Steininger (eds), European Tort Law 2009 (2010), pp. 283–285, nos 35, 37, 40. AP 924/2004 EEmpD 2004, 783. Contra AP 160/2001 ArchN 52 (2001) 868, according to which the son-in-law of the deceased is not included in the members of the family, irrespective of the fact that no other close relative exists.

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mothers-in-law.529 (for the fathers- and mothers-in-law, the issue is not settled, though, as the Court of Cassation holds in some other decisions530 that fathers- and mothers-in-law are not included in the members of the family). To the family of the deceased also belongs the child of his/her spouse from another marriage.531 Among the said persons are not included uncles, nephews, first cousins nor sisters- and brothers-in-law,532 even if no other close relatives exist.533 316. As mentioned above, the relatives of the deceased are only entitled to compensation for pain and suffering. Such relatives are additionally entitled to compensation for moral harm in exceptional cases only if they claim and prove that they have sustained a distinct harm to their health, which goes beyond the usual distress caused by the death of a relative; this is the case, e.g., when the said relatives develop a distinct psychic disorder, other than the nervous breakdown caused by the sudden and unexpected death of a beloved relative.534 317. An interesting issue is whether the existence of family relationships between the tortfeasor and the victim precludes or diminishes the compensation of the family of the victim for pain and suffering in case of the victim’s death. According to one decision of the Court of Cassation,535 such a factor does not preclude claims for pain and suffering, but it can lead to a reduction of the amount of money awarded, though in the second one, which follows decision 13/2002 (in its full 529. See AP 298/2009, published in NOMOS; 864/2009 Revue of Maritime Law 2009, 184; 1285/2009; 1735/2006 ChrID Z/2007, 131; 434/2005 EllDni 46 (2005) 1060 = ChrID E/2005, 892, followed by a critical note of N. Koumoutzis; 795/2004 ChrID Δ/2004, 897 = EllDni 47 (2006) 1346 and 1351 (for a brief summary (in English) of the facts and the judgments of the last three decisions as well as a short commentary thereof, see E. Dacoronia, in H. Koziol & B.C. Steininger (eds), European Tort Law 2006 (2007), pp. 256–258, nos 54–58; European Tort Law 2005 (2006), pp. 324–328, nos 62, 67, 72; European Tort Law 2004 (2005), pp. 340–341, nos 46–48, respectively); 598/2005, supra (fn. 526); 1752/2005 NoV 54 (2006) 678 = ChrID 2006, 328; 1131/2004; 723/ 2002 NoV 51 (2003) 33 = EllDni 44 (2003) 709, 794; 855/2000; 1114/2000 EEmpD 2000, 758 = ChrID A/2001, 352. 530. AP 581/2010, published in NOMOS and AP 731/2005 published in ISOKRATIS. 531. AP 795/2004, supra (fn. 529). 532. AP 21/2000 (full bench), supra (fn. 521); 1188/2005, published in ISOKRATIS (for a brief summary (in English) of the facts and the judgments of said decision as well as a short commentary thereof, see E. Dacoronia, in H. Koziol & B.C. Steininger (eds), European Tort Law 2005 (2006), pp. 324–328, nos 66, 71, 73); Ioannina Court of Appeal 261/2007 Arm 63 (2009) 236. 533. AP 1077/2009, published in NOMOS (for a brief summary (in English) of the facts and the judgments of said decision as well as a short commentary thereof, see E. Dacoronia, in H. Koziol & B.C. Steininger (eds), European Tort Law 2009 (2010), pp. 283–285, nos 34, 36, 38–39); 1276/ 2009, not published (for a brief summary (in English) of the facts and the judgments of said decision as well as a short commentary thereof, see E. Dacoronia, in H. Koziol & B.C. Steininger (eds), European Tort Law 2009 (2010), pp. 283–285, nos 34, 36, 38–39). 534. According to AP 1824/2007, published in NOMOS, the mother who has suffered a nervous breakdown because of her daughter’s death at a car accident is entitled to compensation for pain and suffering, but not to an additional compensation, as long as she has not suffered a constant disability or functional invalidity in the meaning of Art. 931 GCC. 535. AP 513/2004 ChrID Δ/2004, 619 (for a brief summary (in English) of the facts and the judgments of said decision as well as a short commentary thereof, see E. Dacoronia, in H. Koziol & B.C. Steininger (eds), European Tort Law 2004 (2005), pp. 331–333, nos 16, 19, 22).

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bench),536 it is stated that such a factor, i.e., the existence of family relationships, must not be taken into consideration when awarding compensation for pain and suffering, unless the conditions of Article 300 § 2 GCC are met. B. Pain and Suffering Awards to Fiancés and Non-married Partners 318. Though Greek scholars537 have suggested since long time that, according to the scope of Article 932 sentence 3 GCC, the term ‘family’ should be interpreted broadly so as to include also the fiancé as well as the partner who cohabited in free union with the deceased or that at least Article 932 sentence 3 GCC should be applied by analogy to the said persons, even if they were not going to be considered members of the family in a broad sense, the Court of Cassation, trying to safeguard the constitutionally protected institution of marriage, shows a rather old-fashioned face and applies Article 932 sentence 3 GCC by analogy only for the fiancé.538 For the partner in free union, who merely cohabits, having no intention to conclude marriage in the future, a different approach is followed, not allowing the application of Article 932 sentence 3 GCC even by analogy to non-spouses; thus, no compensation for pain and suffering can be awarded.539 The Court of Cassation in 2007540 stresses that, in order for somebody to be considered as a fiancé and part of the ‘family of the victim’ in the meaning of Article 932 GCC, a reciprocal promise for the future celebration of marriage should have been exchanged; a mere proposal to marriage, love affairs or negotiations for marriage do not suffice in order to qualify somebody as a fiancé; the law does not provide for compensation for pain and suffering to the cohabiting partner of the deceased nor can Article 932 GCC be applied by analogy.

536. EllDni 43 (2002) 694, 695 = ChrID B/2002, 317. 537. I. Spyridakis (note under EfAth 618/1976, NoV 24 (1976) 725 and under AP 434/2005, EpiDikIA 2005, 257) has since long expressed the view that when the free union has a certain duration, the partners present themselves as a couple in the social-economic life, children were born out of their relationship, etc., the partner in free union should be dealt as a spouse when applying Art. 932 sent. 3 GCC; Ap. Georgiades, in: Ap. Georgiades & M. Stathopoulos (eds), Civil Code, Art. 914, nos 27–30; Ap. Georgiades, Law of Obligations, General Part, § 61, p. 676, no. 23; P. Kornilakis, Law of Obligations, Special Part I, § 106 8 II, 651; K. Pantelidou, The Notion of Family in Art. 932 Sent. 3 GCC, Arm 36 (1982)., 410; M. Stathopoulos, Law of Obligations, General Part, § 15 VII, pp. 1018–1019, no. 105. See also in detail St. Paterakis, Monetary Compensation for Moral Harm, 292 f. 538. AP 1071/2002 ChrID B/2002, 909, followed by a critical note of Nezeriti; 434/2005, supra (fn. 530); 1735/2006, supra (fn. 530); 1141/2007, supra (fn. 522) (for a brief summary in English of the facts and the judgments of the Court in the last three decisions, see E. Dacoronia, in H. Koziol & B.C. Steininger (eds), European Tort Law 2005 (2006), pp. 324–326, nos 62, 67, 72; European Tort Law 2006 (2007), pp. 256–258, nos 54–58 and European Tort Law 2007 (2008), pp. 323–325, nos 46, 48, 51. 539. AP 1735/2006, supra (fn. 529); 434/2005, supra (fn. 529); 1541/2009 ChrID I/2010, 528. 540. AP 1141/2007, supra (fn. 522).

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319. The Court of Cassation541 repeats that the person who merely cohabited with the deceased, having no intention to conclude marriage in the future, is not included in the family of the victim. Neither does the law provide for compensation for pain and suffering to the cohabiting partner of the deceased nor can Article 932 GCC be applied by analogy. The Court stressed that an opinion to the contrary would be contra legem and would overturn the constitutionally protected institution of marriage. Moreover, according to the Court, there is no lacuna in the law regarding persons who cohabit to justify the analogy. The notion of so-called free union, i.e., the cohabitation of unmarried couples, was introduced for the first time by L 1329/1983 in Article 1444 § 2 sentence 1 GCC as a ground for ceasing the right of alimony after divorce, i.e., as a form of, so to speak punishment, against the divorced spouse who is entitled to alimony, if after the divorce the said spouse cohabits with somebody else. However, a direct regulation of the results of the ‘free union’ is not made by the GCC. So, ‘free union’ is placed among the ‘de facto family relationships’, i.e., the informal or irregular from the legal point of view situations that are at the margin of the legal life. Furthermore, it derives from the combination of Articles 1444 sentence 2, 1456, 1457, 1471, 1479, 1350 ff. and 1386 ff. GCC, combined with Article 21 § 1 of the Greek Constitution, that this choice is a conscious choice of the legislator, who, even though it was aware of the term ‘free union’ even before 1983, did not wish to regulate the matters and the legal issues stemming from the cohabitation of unmarried couples. The Greek legislator consciously avoided regulating these issues till today and did not introduce in Greece the institution of so-called registered relationships, which is provided for in certain Member States of the EU. On the contrary, few provisions are introduced – which regulate only indirectly matters connected to the ‘free union’– in view of medically assisted human reproduction and its consequences, centred on the protection of the child born out of such a union. The institution of marriage is regulated and protected by the above-mentioned provisions and by the Greek legal order in general, while no equivalent or analogous protection of the cohabitation out of marriage is acknowledged. The latter, even if it was a ‘registered relationship’, cannot be assimilated to the institution of marriage. The two institutions, i.e., the institution of ‘registered relationship’ of cohabitation between persons of different or same sex and the institution of marriage differ not only in name but also in their very essence because they have been created to cover different social needs. The cohabitation of unmarried couples with no children is not recognized by Greek law because no legal consequences are attached to it and, thus, it cannot be included in the notion of family, and is not protected, all the more because the people who choose to cohabit and remain unmarried obviously do not wish to be subjected to legal regulations and obligations, and therefore it would be contradictory to only seek protection. The Court concluded that there is no similarity between the regulated and the nonregulated situation required, a similarity that is necessary for the application of Article 932 sentence 3 GCC by analogy. 541. AP 775/2011 ChrID IB/2012, 181 (for a brief summary (in English) of the facts and the judgments of said decision as well as a short commentary thereof, see E. Dacoronia, in K. Oliphantl & B.C. Steininger (eds), European Tort Law 2011 (2012), pp. 292–296, nos 30–36).

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320. The Court of Cassation adheres with this decision once more to its wellestablished jurisprudence, according to which and contrary to the view of Greek scholars, the person who merely cohabits with the deceased, having no intention to conclude marriage in the future, does not belong to the ‘family of the victim’ according to Article 932 GCC.542 321. Thus, though Greek scholars543 have suggested for a long time that, according to the scope of Article 932 sentence 3 GCC, the term ‘family’ should be interpreted broadly so as to include also the fiancé and the partner who cohabited in free union with the deceased or that at least Article 932 sentence 3 GCC should be applied by analogy to the said persons, even if they were not going to be considered members of the family in a broad sense, the Court of Cassation applied Article 932 sentence 3 GCC by analogy only for the fiancé;544 for the partner in free union a different approach is constantly followed, on the grounds mentioned in the judgment presented hereinabove, not allowing the application of Article 932 sentence 3 GCC not even by analogy to non-spouses.545 322. To our view, this persistence of the Court not to apply Article 932 GCC, not even by analogy to non-spouses, sounds particularly old fashioned, especially first after L. 3719/2008 introducing the cohabitation pact in Greece,546 i.e., an agreement between two adults of different sex by which they organize their cohabitation,

542. See also AP 1541/2009 ChrID I/2010, 528; 434/2005, supra (fn. 529) and 1141/2007, supra (fn. 522) (for a brief summary in English of the facts and the judgments of the Court in the last two decisions as well as a commentary thereof, see E. Dacoronia, Greece, in H. Koziol & B.C. Steininger (eds), European Tort Law 2005 (2006), pp. 324–328, nos 62, 67, 72 and European Tort Law 2007 (2008), pp. 323–325, nos 46, 48, 51). 543. I. Spyridakis, note under EfAth 618/1976, NoV 24 (1976) 725; Ap. Georgiades, in: Ap. Georgiades & M. Stathopoulos (eds), Civil Code, Art. 914, nos 27–30; Ap. Georgiades, Law of Obligations, General Part, § 61 no. 21; K. Pantelidou, The Notion of Family in Art. 932 Sent. 3 GCC, Arm 36 (1982) 410; P. Kornilakis, Law of Obligations, Special Part I, § 106 8 II, 651; M. Stathopoulos, Law of Obligations, General Part, § 15 VII, pp. 1018–1019, no. 105. See also in details St. Paterakis, Monetary Compensation for Moral Harm, 292 ff. 544. AP 1071/2002 ChrID B/2002, 909 followed by a note of Nezeriti. 545. The Court of Cassation does not assimilate free union to marriage in other issues as well. Cf. AP 14/2004 (full bench) ChrID Δ/2004, 606, followed by a note of E. Kounougeri Manoledaki = NoV 53 (2005) 52 = ArchN 56 (2005) 159, according to which Art. 1471 § 2 sent. 2 GCC on the exclusion of the possibility to contest paternity when the husband has consented to the artificial insemination of his wife does not apply by analogy to persons cohabiting in free union. 546. For an analysis of various issues of L 3719/2008, see K. Christodoulou, Cohabitation Agreement: Abolition or Dispositivisation of the Institution of Marriage? To an Evaluative Homogenisation of the Cohabitation Law, TPCL 2 (2009) 50; E Glegle, The Innovations Effected by the Cohabitation Agreement: Issues and Practical Application, TCPL 2 (2009) 3; I. Kondyli, Cohabitation Agreement and Legal Portion, TPCL 2 (2009) 36; A Koutsouradis, Law 3719/2008: Audietur et Altera Pars et Cetera, TPCL 2 (2009) 56; M. Mavromichalis, The Function of the Cohabitation Agreement in Other European Countries (Germany–France) TPCL 2 (2009) 29; N. Psouni, The Modulation of Hereditary Relations in the Content of Law’s 3719/2008 Cohabitation Agreement, TPCL 2 (2009) 18; A. Riga, The Institutional Role of the Notary Public in the Cohabitation Agreement Regulated by Law 3719/2008 (First Chapter – Arts 1–13) TPCL 2 (2009) 31; Chr. Stambelou, Dissolution of the Cohabitation Agreement: Paternity Presumption, TPCL 2 (2009) 13.

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executed in person and vested the notarial deed,547 and which entails legal consequences (property relationships, recognition of the parental care of the child born during the cohabitation pact to both parents in common, right of inheritance, etc.) and then after L. 4356/2015 which already recognizes the cohabitation pact between adults regardless of their gender. It is no longer true that ‘free union’ is placed among the ‘de facto family relationships’, i.e., the informal or irregular from the legal point of view situations that are at the margin of the legal life, as stated in the decision. The cohabitation of unmarried couples irrespective of sex is now recognized by Greek law. C. Pain and Suffering Awards in Favour of Foetuses, Babies and Infants 323. As the existence of mutual feelings of love and affection between the victim and the members of the family and the feeling of sorrow and grievance of the latter in case of the victim’s death are conditions for awarding compensation for pain and suffering, the special issue of whether foetuses, babies and infants are entitled to such an award, though they were incapable at the time of the death to feel such pain, generated vivid discussions. It has to be noted here that both legal literature and jurisprudence do not allow, as a rule, compensation for pain and suffering to be granted in case of death to persons deprived of the use of mind, unless their mental situation is such that they can feel grief from the death of their close relative. 324. Till 2001, the Court of Cassation used to hold that damages for pain and suffering could be given only for present and actual pain and suffering, and foetuses and babies have not yet a formed moral personality which would enable them to feel grievance. After decision 97/2001 of the Court of Cassation,548 which, following the new scientific views related to the interpretation of Article 932 subparagraph c’ GCC expressed in numerous decisions of the Courts of Appeal of the preceding fifteen years, held, contrary to its up to that date view that damages for pain and suffering can also be sought for the foetus as well as for the baby of a very young age and this irrespectively of their incapacity to feel any pain already at the time of the death, the relevant jurisprudence is settled in favour of the foetuses and infants, and there is no more voice to the contrary. 325. The Court of Cassation with the above-mentioned decision recognized for the first time that the awarded amount could be for future pain and suffering (argument from Article 298 of the GCC, which recognizes the restitution of the future patrimonial damage). Since the beginning of the twenty-first century, the Court of 547. A copy of the deed must be presented to the Registrar of the place of residence of the cohabiting partners and recorded in a special book kept at the Registry Office (Art. 1 L. 3719/2008). 548. AP 97/2001, ChrID A/2001, 120 (awarding EUR 29,347 to the baby born after the death at a car accident of his 36-year-old father), with approving commentaries by L Kitsaras = NoV 50 (2002) 121 = EllDni 42 (2001) 674 (for a brief summary (in English) of the facts and the judgments of said decision as well as a short commentary thereof, see E. Dacoronia, in H. Koziol & B.C. Steininger (eds), European Tort Law 2001 (2002), pp. 280–283, nos 44, 49, 54–56).

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Cassation, following the new scientific views related to the interpretation of Article 932 subparagraph c’ of the GCC, has recognized549 that the awarded amount can be for future pain and suffering (argument from Article 298 GCC, which recognizes the restitution of future patrimonial damage), thus awarding compensation for pain and suffering also to foetuses (provided they are born alive), babies and infants, irrespectively of their incapacity to feel any pain already at the time of the death of their close relative. Pain and suffering cannot still be felt by the infant because of its young age and the incomplete development of its emotional maturity, but it is certain it will feel such pain and suffering in the usual course of things when it arrives at the age allowing him to receive influences of the external environment and to feel the lack of a member of his family who died at a car accident. 326. Earlier such a possibility was not recognized550 because, according to the Court, on the one hand damages for pain and suffering were only given for present and actual pain and suffering and on the other because foetuses and babies do not have a formed moral personality, which would enable them to feel a grievance. There were, however, sporadic decisions, even before, that recognized a right to compensation for pain and suffering to babies and infants.551 D. Pain and Suffering Awards for the Loss of Foetuses 327. It has to be mentioned here that when a miscarriage is proven as causally connected to a car accident, it is disputed in the Greek literature and jurisprudence whether the pregnant woman is entitled to an amount as moral harm or whether she alone or she and her husband are entitled to an amount as pain and suffering for the loss of the foetus.552 328. Part of the Greek jurisprudence553 and of Greek authors554 follow the view that both spouses are entitled to an amount as pain and suffering for the loss of the 549. AP 97/2001, supra (fn. 548); 1652/2002 ChrID Γ/2003, 122 = NoV 51 (2003) 1215 = EllDni 44 (2003) 1562; 911/2003 ChrID Γ/2003, 993; 1641/2003 EllDni 45 (2004) 716; 598/2005, supra (fn. 526); 835/2005, published in ISOKRATIS and NOMOS. For a brief summary of the facts and judgment of the two last decisions (in English), see E. Dacoronia, in H. Koziol & B. Steininger (eds), European Tort Law 2005 (2006), pp. 326, 327, nos 63, 65, 68, 70; 1261/2007, supra (fn. 282). 550. AP 583/1997 EllDni 39 (1998) 88; 1153/1993 EllDni 36 (1995) 321. 551. See AP 1471/1997 EllDni 39 (1998) 538; 1236/1993 EllDni 36 (1995) 135; EfAth 9751/1997 EllDni 39 (1998) 1349; 2528/1994 EllDni 37 (1996) 1379; 1537/1991 EllDni 32 (1991) 1095, followed by a note of A. Kritikos, where the gradual change in legal literature and jurisprudence on the subject matter is presented; Thrace Court of Appeal 508/1987 EpSygkD 1988, 339; Thessaloniki Single Member Court of First Instance 1884/1988 Arm 43 (1989) 24; Thiva Single Member Court of First Instance 363/1995 EllDni 39 (1998) 203; EfAth 5965/1996 SEpSygkD 1997, 322; Lefkada Single Member Court of First Instance 163/1988 ArchN 39 (1988) 521. For the problematic in general of causing moral harm or pain and suffering to persons mentally disabled or of a very young age, see St. Paterakis, Moral Compensation for Moral Harm, 2nd edn. (2001) 266 f. 552. See for this issue, A. Kritikos, Damages for Traffic Road Accidents, § 20 III, p. 408, nos 39–40. 553. EfAth 6810/1996 EllDni 38 (1997) 867; 7041/1996 EllDni 38 (1997) 1871; Ioannina Court of Appeal 439/2005 Arm 60 (2006) 1921, followed by a note of A.- N.A. Liontas = NoV 54 (2006) 1480; Thessaloniki Court of Appeal 2218/2011 Arm 66 (2012) 934, followed by remarks of A.- N.A. Liontas.

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foetus on the ground that human life starts with conception. Another part of the jurisprudence on the other hand is of the view555 that, given Article 35 GCC which stipulates that a person starts to exist from the moment she is born alive and ceases to exist with her death, there can be, in the case of a foetus, no discussion about the death of a person in the meaning of Article 932 sentence 3 GCC and, accordingly, about the possibility of an award for pain and suffering to the members of the family, i.e., to the father and mother. According to this view, only the mother is entitled to an amount of money as moral harm because of the impairment to her health; on the contrary, no such right is recognized to the husband, as he is a third person whose health or body is not immediately affected and, therefore, no such claim exists for him. 329. Worthy of reporting is the decision of Thessaloniki Single Member Court of First Instance 11430/2012556 because what is particular in the case is that although there was no certainty, the doubt caused to the pregnant woman about the causal relationship of the accident to her miscarriage was taken into consideration for the amount awarded as moral harm for the loss of the foetus. XI. Compensation of Pecuniary and Non-pecuniary Damage When the Spouse or a Close Relative of the Victim Commits Suicide 330. As mentioned above,557 the Greek courts have dealt with two cases where the wife (in the first case) and the mother (in the second case) of a victim killed in a road accident committed suicide because of their grief and deep melancholy caused by the death of their respective spouse and son. The issue here was whether the relatives of the person who committed suicide could claim the funeral expenses and compensation for pain and suffering from the person who caused the accident. Both decisions rejected the actions filed as not legally founded on the ground of lack of causation between the accident and the suicide. 331. In particular, the EfAth, in its decision 10796/1988,558 held that, from the provisions of Articles 914, 297 and 298 sentence 2 GCC, it derives that: (a) damage and (b) a legal ground for the tortfeasor’s liability are among the fundamental presuppositions required for damages to be paid. The existence of a legal ground, however, does not cover all damage caused, i.e., even the most irrelevant. Only the 554. St. Paterakis, Pecuniary Satisfaction for Moral Harm, p. 135, fn. 194a (see also N. Papantoniou, General Principles, Vol. A, § 218; K. Pantelidou, The Notion of Family in Art. 932 Sent. 3 GCC, Arm 36 (1982), p. 409, note 52; A.- N.A. Liontas, note under Ioannina Court of Appeal 439/2005 Arm (60) 2006, 1924. 555. EfAth 6810/1996 EllDni 38 (1997) 867; Piraeus Court of Appeal 603/2006 PeirN 2007, 149; Patras Court of Appeal 798/1999 EpSygkD 1999, 642; 398/2004 AchaikiN 21 (2005) 613; Athens Single Member Court of First Instance 2069/2010 EpiDikIA 2010, 292, followed by a note of I. Spyridakis. 556. Arm 66 (2012) 924, followed by remarks of St. Koumanis. 557. See also above under II3, p. 109. 558. EllDni 34 (1993) 603, followed by a note of A. Kritikos.

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damage that is the consequence of the legally recognized ground for liability can and should be compensated. This means that between the damage and the legal ground for liability a causal link should exist, which constitutes the third independent condition, necessary for the obligation for damages to exist. As regards the definition of the exact meaning of the causal relationship, the conditio sine qua non theory was abandoned a long time ago in Greece regarding civil liability559 because it is considered to lead to non-lenient solutions for the debtor. The solutions are sought on the basis of the theory of adequate causation (causa adequata) and on the basis of the theory of the scope of the rule of law (in German ‘Schutzzwecklehre’), which tends to prevail, and which restricts even more, in comparison with adequate causation, the extended recognition of the obligation for damages against a certain person. The core of the theory of the scope of the rule of law lies in the fact that the aim of any obligation imposed by law (in the frame of either contractual or extracontractual liability) is to protect certain interests. Only if the damage is caused to such protected interests is it attributable to the person who caused it. The answer to the question of which are the interests aimed to be protected can be found through the interpretation of the spirit and of the scope of the rule of law. According to the theory of adequate causation, an event must have in general the tendency and capacity to lead to the damage caused according to the usual course of events, in order that the said damage can be attributed to a certain person, who must pay damages for it. There is no causal relationship when the damage was caused by an unforeseeable, accidental or exceptional case, which is due to the particularity of the specific case.560 332. Following the above, the Court of Appeal concluded that the fact that the wife of a victim of a car accident hanged herself seven months after the death of her husband because of a deep depression caused by her husband’s death cannot be, according to the prevailing theory of adequate causation as well as according to the theory of the protective scope of the rule of law, attributed to the tortfeasor, who culpably caused the death of her husband, and cannot hold him liable for damages. According to the Court, the sudden death of the victim at the road accident was capable of and could provoke a deep nervous breakdown to his wife and a need for therapeutic treatment or hospitalization, the cost for which should be borne by the tortfeasor, as the wife in such a case, would have sustained a direct damage and not

559. See M. Stathopoulos, Law of Obligations, General Part, § 8 IV, pp. 585–586, no. 121; Ap. Georgiades, Law of Obligations, General Part, § 10, p. 150, no. 28. The only value recognized in the conditio sine qua non theory is restricted to considering the but-for test as a logically necessary element for the establishment of liability and using it as a starting point when analysing the causal link (Stathopoulos, Law of Obligations, General Part, § 8 IV, pp. 585–586, no. 121; Ap. Georgiades, Law of Obligations, General Part, § 10, p. 150, no. 29). Contrary to the civil law, the condicio sine qua non theory is the prevailing one in the Greek penal law, where the minimization of liability is achieved on the requisite of fault (M. Stathopoulos, Law of Obligations, General Part, § 8 IV, p. 586, no. 121, fn. 182). 560. See M. Stathopoulos, Law of Obligations, § 8 IV, p. 588, no. 125; EfAth 2249/2002 EllDni 44 (2003) 218; 10641/1995 EllDni 40 (1999) 157 ff.

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an indirect one.561 In the case brought before it, however, the suicide and the damage caused to the plaintiffs (children, mother and siblings of the suicide victim who claimed damages for the funeral expenses they paid and for the pain and suffering they felt because of her death) were so remote from the legal ground that generated the liability of the tortfeasor, i.e., from the accident that caused the death of her husband, so as to prove an impossible consequence of the initial tort. As this consequence could not have been foreseen by the ordinary, prudent average man (in the case under judgment, the defendant), the latter could not be held liable. On the above grounds, the Court of Appeal confirmed the decision of the Court of First Instance and rejected the plaintiffs’ action. 333. In the note following the above decision, the commentator, Honorary Vice President of the Greek Court of Cassation, Ath. Kritikos, agrees with the position taken by the Court. As is obvious from the case presented hereinabove and as pointed out by the commentator, the issue that arises is whether the tortfeasor has to pay damages not only for the persons connected to the victim of the accident and entitled to damages from the tortfeasor according to Article 928 GCC in combination with Article 932 GCC but also for those connected to the person who committed suicide and who, on the basis of the said provisions, would also have had a claim for damages against the initial tortfeasor. According to the commentator, an affirmative answer might lead to an endless chain of persons who would be entitled to damages, and there would be no limit to the obligation of damages that burdens the tortfeasor. Such a solution cannot be tolerated by the law. Some limits have to exist, and these are dictated by the theory of adequate causation. According to this theory, the death of a husband or close relative does not have the general tendency to cause depression to such a degree that would normally lead to suicide. This is also statistically confirmed by everyday reality. The number of persons who commit suicide because of the death of their close relative or spouse is indeed limited. Suicide is a fact unforeseeable and exceptional, which is due to the particularity of the specific case; thus, the unfavourable economic consequences caused to the relatives of the person who committed suicide should be borne by them and should not be imposed upon the tortfeasor who caused the accident, as not causally connected to the legal ground for liability. 334. Eight years later, the Athens Single Member Court of First Instance arrived, with its decision 2758/1996,562 and with the same as above reasoning, at the same conclusion and rejected the action of the husband, who claimed damages for the funeral expenses he paid, for the deprivation of services and for the pain and suffering he felt because of the death of his wife and mother of their son who was killed in a road accident. The said plaintiff’s wife had committed suicide after the accident 561. See also EfAth 3839/1978 NoV 27 (1979) 581, where it was held that the nervous breakdown of the parents of the victim constitutes a direct damage of them, as there exists a causal relationship between the event causing the damage and the result. According to the minority of the Court, however, the said breakdown constitutes a non-compensable indirect damage, given that the tortious act was directed against the son – victim – his parents could be compensated only if the presuppositions of Arts 928 and 929 GCC were met, which was not the case here. 562. SESygkD 1997, 39.

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because of her deep grief caused by the death of their beloved son. The Court held that there was no causal relationship between the negligent act of the tortfeasor, which caused the death of the son, and the subsequent suicide of the mother, given that, according to the usual course of events, parents do not commit suicide when their child dies in a car accident, and, as a consequence, it rejected the action of the husband as unfounded.

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Chapter 5. Various Damages (Property) §1. UNLAWFUL ABSTRACTION OF A THING 335. Though the general rule is that a debtor of a due payable performance is in default only after he has received a judicial or extrajudicial reminder of the creditor (Article 340 GCC), the legislator introduces an exception for the unlawful abstraction of a thing and stipulates that the person who has done such an abstraction is in default from the date of the abstraction; as a consequence from that moment, such person is also liable for fortuitous events (Article 344 GCC), and he owes interest for the amount of damages (Article 347 GCC).563 Articles 934–936 GCC provide that whoever owes a thing which has been abstracted by an unlawful act is in default from the date of the abstraction. The debtor of damages for the abstraction of a thing has a claim according to the provisions on the revendication of a thing for the expenses borne for the thing. Whoever owes damages for the abstraction of or for harm to a thing is freed by paying them to the person who was in possession of the thing at the time of the abstraction or harm unless he knows or he ignores out of fault that a third party has the right of ownership or another right on the thing. 336. Article 934 GCC applies when the abstracted thing is destroyed, lost, etc., while in the hands of the person who abstracted it. In such cases, the tortfeasor could invoke Articles 330 and 336 GCC564 and be exempted from liability by alleging that the abstraction is not causally connected to the destruction, loss, etc., but it is due to fortuitous events. Article 934 GCC exactly aims to exclude the possibility of such allegations that could lead to the exemption from liability.565 §2. EXPROPRIATION 337. According to the Greek Constitution, property is under the protection of the State, and no one can be deprived of his property except for the public benefit which must be duly proven, when and as specified by statute and always following full compensation corresponding to the value of the expropriated property. Only if these conditions are met is the expropriation lawful. In particular, the detailed Article 17 of the Greek Constitution stipulates the following: 563. See, i.a., G. Georgiades, in Georgiades SEAK I, Art. 934 no. 1. 564. Article 330 GCC: ‘Responsibility for One’s Own Conduct. – A debtor is responsible, unless it is otherwise provided, for any shortfall in the performance of his obligation resulting from wilful misconduct or negligence imputable to him or to his legal representatives. There is negligence when the generally (required) care is not exercised, as normally required in conducting business.’Article 336 GCC: ‘When acquittal due to impossibility occurs. – The debtor is released from the obligation to furnish the performance, if he proves that the impossibility was due to an event for which the debtor has no liability. But he is obliged to immediately inform the creditor of the impossibility, as soon as he is informed of it himself.’ 565. Ap. Georgiades, in Georgiades & Stathopoulos (eds), Civil Code, 934, nos 2–3; G. Georgiades, in Georgiades SEAK I, Art. 934 no. 2.

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1. Property is under the protection of the State; rights deriving therefrom, however, may not be exercised contrary to the public interest. 2. No one shall be deprived of his property except for the public benefit which must be duly proven, when and as specified by statute and always following full compensation corresponding to the value of the expropriated property at the time of the court hearing on the provisional determination of compensation. In cases in which a request for the final determination of compensation is made, the value at the time of the court hearing of the request shall be considered. If the court hearing for the final determination of compensation takes place after one year has elapsed from the date of the court hearing for the provisional determination, then, in order to determine compensation, the value at the time of the court hearing for the final determination shall be taken into account. In the decision declaring an expropriation, specific justification must be made of the possibility to cover the compensation expenditure. Provided that the beneficiary consents thereto, the compensation may also be paid in kind, in particular in the form of granting ownership over other property or of granting rights over other property. 3. Any change in the value of expropriated property occurring after publication of the act of expropriation and resulting exclusively therefrom shall not be taken into account. 4. Compensation is determined by the competent courts.566 Such compensation may also be determined provisionally by the court after hearing or summoning the beneficiary, who may be obliged, at the discretion of the court, to furnish a commensurate guarantee in order to collect the compensation, as provided by the law. Notwithstanding Article 94, a law may provide for the establishment of a uniform jurisdiction for all disputes and cases relating to expropriation as well as for conducting the relevant trials as a matter of priority. The manner in which pending trials are continued may be regulated by the same law. Prior to payment of the final or provisional compensation, all rights of the owner shall remain intact and occupation of the property shall not be allowed. In order for works of general importance for the economy of the country to be carried out, it is possible that, by special decision of the court which is competent for the final or the provisional determination of the compensation, the execution of works even prior to the determination and payment of the compensation is allowed, provided that a reasonable part of the compensation is paid and that full guarantee is provided in favour of 566. The Greek Constitution, before its 2001 revision, following the tradition according to which the civil courts are the natural defender of the property of individuals, explicitly stipulated that compensation in case of expropriation is exclusively determined by civil courts. Though the Constitution now, after its revision, stipulates that said compensation is determined by the competent courts, without naming which courts are the competent ones, the civil courts have remained competent because, as stipulated in the Legislative Act of 21 Dec. 2001 (ratified by L. 2990/2002), compensation for expropriation is related to the procedure of recognition of its beneficiaries. The civil courts, in determining the compensation, have to act at their discretion, without any intervention from the legislative or the executive power.

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the beneficiary of the compensation, as provided by law. The second period of the first section applies accordingly also to these cases. Compensation in the amount determined by the court must in all cases be paid within one and one half years at the latest from the date of publication of the decision regarding provisional determination of compensation payable and, in cases of a direct request for the final determination of compensation, from the date of publication of the court ruling; otherwise the expropriation shall be revoked ipso jure. The compensation as such is exempt from any taxes, deductions or fees. 5. The cases in which compulsory compensation shall be paid to the beneficiaries for lost income from expropriated property until the time of payment of the compensation shall be specified by law. 6. In the case of execution of works serving the public benefit or being of general importance to the economy of the country, a law may allow the expropriation of wider zones beyond the areas necessary for the execution of the works. The said law shall specify the conditions and terms of the expropriation, as well as all matters related to how areas expropriated in excess of those required for the work to be done will be given or used for public or public utility purposes in general. 7. The digging of underground tunnels at the appropriate depth without compensation, may be allowed by law for the execution of works of evident public utility for the State, public law legal persons, local government agencies, public utility agencies and public enterprises, on condition that the normal exploitation of the property situated above shall not be hindered.567 338. As the said article of the Constitution aims at the protection of property, compensation paid for land expropriation is not considered in Greece as a part of tort law. One can read about expropriation in special chapters of property law books568 and can find details about the procedural matters, regulated by the Code on Compulsory Expropriation of Immovables (L. 2882/2001, as amended), in constitutional and administrative law books and in specialist books569 but not in tort law literature.

567. The translation of Art. 17 is taken from the site of the Greek Parliament (http:// www.hellenicparliament.gr) where a translation of the Greek Constitution in English, French and German can be found. 568. See, e.g., from the recent bibliography, Ap. Georgiades, Property Law, §§ 40 and 41, pp. 457 f., where a list of the bibliography related to the subject matter can be also found. 569. Notably in the book by K. Choromides, Compulsory Expropriation, 4th edn., 2008.

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Chapter 6. Interference with Collateral Benefits §1. INSURANCE 339. As provided by Article 930 § 3 GCC, the fact that someone else is obliged to compensate or furnish maintenance to the injured party does not bar the claim for compensation and, thus, cannot turn out to be to the tortfeasor’s advantage. Consequently, the victim of a tort who is looked after by his relatives is entitled to seek from the tortfeasor the amount of money he would have expended on nurses’ fees, even if he gave no money to his relatives for the services, care and attention they provided.570 340. Contrary to the prevailing view in theory571 which does not accept the cumulative collection of both damages and payment by a third party, it is a settled position of the jurisprudence of AP as well as of the courts of substance that Article 930 § 3 GCC introduces an exception to the general principle of inclusion of gains and losses and permits the cumulative receipt by the person who sustained the damage of both damages and the payment of a third party (e.g., maintenance, salary, insurance payment).572 Accordingly, the D’ Civil Chamber of AP held573 that a more general principle derives from Article 930 § 3 GCC, according to which the claim of the victim for damages cannot be rejected by the tortfeasor because somebody else, also obliged by law to pay the salary or the medical expenses of the victim for the healing of his wounds, actually paid the said amounts. 341. Contrary to the view expressed by the D’ Civil Chamber, the A1 Civil Chamber, held574 that the cumulative receipt by the person who sustained the damage of both damages and the payment of a third party must be accepted only if it is provided by the contract or the provisions of the law that govern the relationship between the person who sustained the damage and the third party; if this is not the case, then the general rule of the law of damages applies according to which damage cannot be a source of enrichment for the person who sustained the damage. By applying this rule, the A1 Civil Chamber held that the person who sustained the

570. AP 833/2005 EllDni 47 (2006) 126 (for a brief summary (in English) of the facts and the judgments of said decision as well as a short commentary thereof, see E. Dacoronia, Greece, in H. Koziol & B.C. Steininger (eds), European Tort Law 2005 (2006), pp. 320–321, nos 49–51). 571. See V. Panagiotopoulos, note under AP 384/2013 ChrID IΓ/2013, 729 (for a brief summary (in English) of the facts and the judgments of said decision as well as a short commentary thereof, see E. Dacoronia, Greece, in E. Karner & B.C. Steininger (eds), European Tort Law 2013 (2014), pp. 288–292, nos 30–39). 572. See for the relevant case law, V. Panagiotopoulos, The Compensation Lucre Com Damno, 2010. See also AP 384/2013, supra (fn. 571). 573. AP 116/2010, published in NOMOS (for a summary of the decision, see NoV 58 (2010) 1488) 126 (for a brief summary (in English) of the facts and the judgments of said decision as well as a short commentary thereof, see E. Dacoronia, Greece, in H. Koziol & B.C. Steininger (eds), European Tort Law 2010 (2011), pp. 248–249, nos 5–8). 574. AP 347/2009, NoV 57 (2009) 1627.

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damage is not entitled to damages for the salaries he would have earned during his hospitalization, as they were paid to him by his employer (the State).575 342. An exception to the rule of Article 930 § 3 GCC only exists when the victim is insured by the Social Security Fund (Idryma Koinonikon Asfaliseon, IKA). According to Article 18 of L. 1654/1986, the claim of the victim against the tortfeasor is transferred by law to IKA.576 §2. SOCIAL SECURITY 343. The question that has arisen when interpreting Article 929 GCC is if the employee who has been temporarily incapable of working due to an injury may, according to this article, ask from the tortfeasor also the insurance contributions that the employer is not obliged to pay, as long as the employee does not provide his services. According to the jurisprudence of the Court of Cassation, the injured person may ask from the author of the accident damages for his incapacity to work that amount to his total (mixed) salaries that he would have had, had he not been injured in which damages are included the insurance contributions. These contributions however continue to be a gain for the employee, who loses it for the above reason. So, if the employee wants to have the enjoyment of the insurance contributions, he will have to pay them from his own money, or he will have to work later for an equal amount of time. Therefore, the loss of the insurance contributions constitutes a loss for the employee, who can ask the said contributions as damages from the person who has caused the accident that rendered him incapable of working.577

575. In a note that follows the decision of AP 116/2010 NoV 58 (2010) 1489, the honorary judge of the Court of Cassation M. Margaritis points out that he considers the view expressed in decision 347/ 2009 of the same court more correct. 576. See also AP 1127/2002 EllDni 45 (2004) 397. 577. AP 1056/2000 EllDni 42 (2001) 387 (for a brief summary (in English) of the facts and the judgments of said decision as well as a short commentary thereof, see E. Dacoronia, Greece, in: H. Koziol & B.C. Steininger (eds), European Tort Law 2001 (2002), pp. 278–279, nos 32–35); 1585/ 2002 NoV 51 (2003) 1201 = EllDni 45 (2004) 1024; 1332/2003 EllDni 46 (2005) 77 = EpIDikIA 2004, 23 (for a brief summary (in English) of the facts and the judgments of the last two decisions as well as a short commentary thereof, see E. Dacoronia, Greece, in: H. Koziol & B.C. Steininger (eds), European Tort Law 2002 (2003), p. 239, no. 29 and European Tort Law 2003 (2004), p. 220, nos 27–29).

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Chapter 7. Other Remedies §1. RESTITUTION (FOR UNJUST ENRICHMENT) 344. According to Article 938 GCC, whoever owes damages from an unlawful act has the obligation, according to the provisions governing unjust enrichment, to restitute whatever he has acquired even if the claim arising from the unlawful act has been prescribed. 345. According to the Court of Cassation, what the tortfeasor received can be either a positive increase of his property or an avoidance of its decrease. For the existence of such an obligation, the personal property of the tortfeasor must be increased or not decreased and not the property of the company that the tortfeasor happens to represent.578 §2. INJUNCTIVE RELIEF 346. According to Article 728 GCCP, the Court can temporarily adjudicate, as a provisionary measure, in whole or in part, among other claims, claims for damages for the reduction or the loss of working capacity because of an injury or, in case of death of a person, claims for damages in favour of the persons who, at the time of the death, were entitled to alimony by said person. According to Article 730 § 2 GCCP, though, if the suit for the main case is rejected in substance with a decision not subjected to appeal, then the Court that issued the temporary award orders, after a relevant petition, the return of the amounts paid. §3. PUNITIVE DAMAGES 347. As it is a general principle of the Greek law that damages have an exclusively compensatory character, punitive damages are not recognized. However, the Court of Cassation (in full bench) held,579 though with two dissenting views,580 that a judgment of a US court by which punitive damages were awarded on grounds of 578. AP 345/2002 ChrID B/2002, 507 (for a brief summary (in English) of the facts and the judgments of said decision as well as a short commentary thereof, see E. Dacoronia, in H. Koziol & B.C. Steininger (eds), European Tort Law 2002 (2003), pp. 249–250, nos 71–74). 579. AP 17/1999 (in full bench) EllDni 40 (1999) 1288 = DEE 6 (2000) 181. 580. About the above-mentioned decision 17/1999, which generated a lot of discussion in legal literature, and for a critical approach of the views expressed therein, see K. Kerameus, Sp. Vrellis & An. Grammatikaki, Order of Execution of a Foreign Decision Adjudicating Punitive Damages in Greece, Koinodikion 6.A (2000), 31; the notes of I. Karakostas and of Chr. Michailidou under the decision, DEE 6 (2000) 183 f.; I. Komnios, Public Order and the Institution of Punitive Damages in the Light of the Decision 17/1999, Arm 55 (2001) 450; G. Nikolaidis, Contradiction to the Greek Public Order or Not of Punitive Damages, KritE 2000/1, 319 f.; G. Panopoulos, Punitive Damages and the Greek Public Order of Art. 33 GCC (2003); K. Stamatis, Recognition of a Foreign Court Decision Adjudicating Punitive Damages, NoV 51 (2003) 1553 f.; Ev. Vassilakakis, Possibility to Execute a Foreign Arbitrators’ Decision DEE 12 (2006) 461 f.

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contractual liability, due to the fact that the debtor fraudulently breached the contract, did not violate the national public order and might be declared enforceable in Greece, provided that the ‘penal sanction’ in favour of the creditor was not excessive.

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Selected Bibliography

Greek Bibliography Androulidaki-Dimitriadi, I. The Duty to Inform the Patient. 1993. Argyriadis, A. Legal Issues. Vol. A. 1978. Avrameas, P. ‘Civil Liability Arising from the Exploitation of a Nuclear Vessel’. NoV 11 (1963): 65–70. Baltakos, P. ‘The Omission as a Presupposition for Tort Liability’. ArchN 43 (1992): 449–457. Calavros, K. ‘The Control of the Court of Cassation with Regard to the Adjudication of Monetary: Compensation According to Art 932 GCC’. NoV 63 (2015): 1901–1909. Charalambakis, A. Medical Liability and Ethics. 1993. Chatzinikolaou-Angelidou, R. ‘Liability of the Air Carrier in the Internal Transport of Persons’, Arm 44 (1990): 529–537. Choromides, K. Compulsory Expropriation. 4th edn. 2008. Christakakou-Fotiadi, K. Liability in Tort of Minors and Their Parents or Guardians. 2008. Christodoulou, K. ‘Cohabitation Agreement: Abolition or Dispositivisation of the Institution of Marriage? To an Evaluative Homogenisation of the Cohabitation Law’. TCPL 2 (2009): 50–55. Dagtoglou, Pr. General Administrative Law. 2nd edn. 1984. Dacoronia, E. Catastrophic Harms and Systems of Indemnification. 2015. Deliyannis, I. & P. Kornilakis. Law of Obligations: Specific Obligations. Vol. III. 1992. Filios, P. Law of Obligations: General Part. 6th fully rev. edn. 2011. Filios, P. Law of Obligations: Special Part. Vol. II. 7th ed. 2011. Fountedaki, K. Civil Medical Liability. 2003. Fountedaki, K. Human Reproduction and Civil Medical Liability. 2007. Fountedaki, K. ‘Civil Medical Liability after the Ll. 2251/1994’. KritE (1996/2): 179–204. Fountedaki, K. ‘The Issue of Causation in Medical Liability’. EllDni 35 (1994): 1226–1239. Fountedaki, K. ‘Issues of Civil Medical Liability in Case of Birth of a Person with Serious Illness or Disability (Wrongful Life)’. Digesta (2004): 471–483. Fountedaki, K. ‘Civil Liability of a Private Clinic’, Legal Opinion, ChrID I/2010, 786–793. 161

Selected Bibliography Fountedaki, K. In Concise Interpretation of the Greek Civil Code, edited by Ap. Georgiades. Vol. 1 (= SEAK I). 2010, Art. 57. Fourkiotis, K. Law of Obligations: General Part. 1964. Fragoudaki, E. The Legal Treatment of Applications of Biogenetics: Especially in Private Law Sector. 2008. Georgiades, Ap. General Principles of Civil Law. 5th edn. 2019. Georgiades, Ap. Law of Obligations: General Part. 2nd edn. 2015. Georgiades, Ap. Property Law. 2nd edn. 2010. Georgiades, Ap. (ed.). Concise Interpretation of the Greek Civil Code. Vol. I (= SEAK I). 2010. Georgiades, Ap. & M. Stathopoulos (eds). Civil Code: General Principles. 2nd edn. Vol. IA and IB. 2016. Georgiades, Ap. & M. Stathopoulos (eds). Civil Code: Law of Obligations – Special Part. Vol. IV. 1982. Georgiades, Ap. In Civil Code: Law of Obligations – Special Part, edited by Ap. Georgiades & M. Stathopoulos. Introductory Remarks to Arts. 914–938, Arts. 914, 915, 918, 919, 923, 926, 928, 929, 932, 937. Vol. IV, 1982. Georgiades, Ap. ‘Liability of the Bank Against Third Parties When Exercising Its Credit Policy: Contra Bonos Mores Provocation of Damage from a Bank by Giving Incorrect Information to Another in Relation to the Trustworthiness of a Person, Legal Opinion’. ChrID A/2001: 372–376. Georgiades, G. In Concise Interpretation of the Greek Civil Code, edited by Ap. Georgiades. Vol. 1 (=SEAK I). 2010, Arts. 914, 917, 923, 924, 925, 931, 937. Georgiou, K. ‘Vicarious Liability of a Medical Clinic for Medical Error’. NoV 60 (2012): 838–844. Gerontas, A. ‘The Interpretation of the Law in Conformity to the Constitution’. The Constitution 8 (1982): 1–14. Giarenis, I. ‘The Jurisprudential Configuration of the Notion of Family in the Award of Pecuniary Compensation for Pain and Suffering’. EllDni 54 (2013): 318–339. Glegle, E. ‘The Innovations Effected by the Cohabitation Agreement: Issues and Practical Application’. TCPL 2 (2009): 3–5. Ioakeimidis, S. ‘The Special Prescription of Article 937§2 GCC and the Civil Law Protection of the Victim of a Criminal Activity’, EllDni 54 (2013): 359–383. Kanellopoulou-Botti, M. ‘The Obligation of Giving Genetical Information During the Prenatal Control: In Particular, the Position of the Presumed Biological Father’. Digesta (2008): 363–384. Kanellopoulou-Botti, M. ‘The Offence Against the Chance as Damage to Patrimony or Moral Harm’. KritE (2003/2): 253–307. Karakatsanis, I. ‘The Legal Nature of the Pecuniary Compensation for Pain and Suffering According to Art. 932 Sent. 3 GCC and Its Practical Importance’. NoV 24 (1976): 667–670. Karakostas, I. Community Rules and National Civil Law I. 1997. Karakostas, I. Civil Code: Law of Obligations: Special Part. Vol. 6. 2009. Karakostas, I. Environment and Law, 3rd edn. 2011. Karakostas, I. Law of Torts. 2014. Karakostas, I. ‘Convention on Civil Liability for Damage Resulting from Activities Dangerous to the Environment’. NoV 42 (1994): 156–160. 162

Selected Bibliography Karakostas, I. ‘Sources of Increased Pollution of the Vital Area and Their Treatment by Private Law’. NoV 31 (1983): 1314–1322. Karakostas, I. The Producer’s Liability for Defective Products. 2008. Karakostas, I. & D. Tzouganatos. Consumer Protection (L. 2251/1994). 1997. Karakostas, I. In Civil Code: General Principles, edited by Ap. Georgiades & M. Stathopoulos. Vol. IA. 2nd ed. 2016, Art. 59. Karasis, M. Joint and Several Debt. 1990. Kargados, P. ‘Thoughts on the Criteria of Proof of Causality’. NoV 36 (1988): 1544–1562. Kassimatis, Gr. ‘Constitution and Ordinary Law’. In The Influence of the 1975 Constitution on the Private and Public Law, Publications of the Greek Institute of International and Foreign Law. 1976, 109-162. Kafkas, K. & Kafkas D., Law of Obligations: Special Part. Vol. B. 7th edn. 1993. Kerameus, K., Sp. Vrellis & An. Grammatikaki. Order of Execution of a Foreign Decision Adjudicating Punitive Damages in Greece. Koinodikion 6.A (2000): 31–36. Kiantou-Pampouki, Al. ‘Civil Liability for Marine Pollution: Subjective or Strict Liability?’. END 17 (1989): 1–10. Kitsaras, L. ‘Wrongful Birth: A Claim of the Parents Against the Doctor for Monetary Compensation Because of the Loss of the “Chance” of Interruption of the Pregnancy?’. ChrID IA/2011: 166–173. Komnios, I. ‘Public Order and the Institution of Punitive Damages in the Light of the Decision 17/1999’, Arm 55 (2001): 450–456. Kondyli, I. ‘Cohabitation Agreement and Legal Portion’. TCPL 2 (2009): 36–41. Kontogianni, A. Contributory Negligence in Civil Law. 2006. Kornilakis, P. Law of Obligations: Special Part. 2000. Kornilakis, P. Law of Obligations: Special Part. Vol. I. 2002. Kornilakis, P. Risk Liability. 1982. Kotsiris, L. Civil Liability for Oil Pollution Damage, Dedication to Alexandros Litzeropoulos. Vol. A. 1985. A. Kotzambasi, ‘The Claim for Damages of the Spouse Against the Third Person in Case of Extra-marital Relationships’. KritE 1995/1: 303–318. Koumanis, St. In Concise Interpretation of the Greek Civil Code, edited by Ap. Georgiades. Vol. 1 (=SEAK I). 2010, Arts. 330, 332. Kounougeri-Manoledaki, E. ‘The Problem of Hypothetical Causality in the Law of Damages’. Scientific Annual of the Thessaloniki Bar Armenopoulos 2 (1981): 185–202. Koutsouradis, A. ‘Law 3719/2008: Audietur et altera Pars et Cetera!’. TCPL 2 (2009): 56–69. Kritikos, A. In Civil Code, edited by Ap. Georgiades & M. Stathopoulos. Vol. IA. 2nd edn. 2016. Art. 71. Kritikos, A. Compensation for Car Accidents. Grounds for Civil Liability. Damages, Extent and Fixing. Vol. I. 5th edn. 2019. Kritikos, A. Compensation for Car Accidents. Compulsory Insurance for Civil Liability. Procedure for Resolving Disputes. Vol. II. 5th edn. 2019. Kritikos, A. Damages from Road Car Accidents, b’ supplement to the 3rd edn. 2005. 163

Selected Bibliography Kritikos, A. ‘On Compensation of Expenses and Damage of Persons Close to the One Directly Infringed’. EEN 43 (1976): 88–100. Kritikos, A. ‘Claim of the Spouse for Damages Against the Other Spouse and the Third Person Deriving from the Breach of the Marital Duty of Loyalty’, Dedication to Alexandros Litzeropoulos, Vol. A. 1985, 535 f. Litzeropoulos, A. Elements of the Law of Obligations, 1968. Litzeropoulos, A. Interpretation of the Greek Civil Code (= ErmAK), Vol. B’, 1976. Margaritis, M. & A. Margariti. In Compendium Interpretation of the GCC and of the Introductory Law of the GCC, edited by M. Margaritis & A. Margariti. 2016. Arts. 104-106 of the Introductory Law of the GCC: 1456, 1457. Mavromichalis, M. ‘The Function of the Cohabitation Agreement in Other European Countries (Germany – France)’, TCPL 2 (2009): 26–30. Michailidis-Nouaros, G. ‘Liability from a Wrongful Act to the Person Who Has a Right on a Thing According to the New Civil Code (Article 914)’. AID 10 (1943): 153–179. Nikolaidis, G. ‘Contradiction to the Greek Public Order or Not of Punitive Damages’. KritE (2000/1): 319–335. Nikolopoulos, P. ‘“Wrongful Birth” and Offence to the Parents’ Personality’, TPCL 4 (2011): 812–820. Orfanidis, G. ‘Introductory Remarks to Art. 173–193 GCCP’. In Code of Civil Procedure, edited by K. Kerameus, D. Kondylis & N. Nikas. 2000, 397. Pamboukis, K. ‘Pecuniary Compensation Due to the Offence of the Personality from the Violation of a Contractual Obligation: Remarks under the Decision of the Thessaloniki Court of Appeal 147/2005’. EpiskEmpD 11 (2005): 175–179. Panagiotopoulos, V. The Compensation Lucre Com Damno. 2010. Panopoulos, G. Punitive Damages and the Greek Public Order of Art. 33 GCC. 2003. Pantelidou, K. ‘The Notion of Family in Article 932 Sent. 3 GCC’, Arm 36 (1982): 402–411. Papachronopoulos, N. Civil Liability of the International Air Carrier of Goods According to the Warsaw System. 1988. Papadopoulou-Klamari, D. ‘Pecuniary Satisfaction for Moral Harm of a Mentally Invalid’. KritE (1997/1): 263–291. Papachristou, Ath. ‘The Protection of the Personality and the Article 299 GCC’. The Constitution 7 (1981): 42–58. Papanikolaou, P. Juridical Acts Contrary to Public Policy. 2012. Papanikolaou, P. ‘Notion and Function of Bonos Mores in Art 919 GCC (Opinion)’. NoV 40 (1992): 509–524 = Studies on Civil Law, 2012, 133 f. Papantoniou, N. General Principles. Vol. A’. 1983. Papathanassiou, Ch. ‘Responsibility from Nuclear Accidents and Greek Law’, EEN 29 (1962): 264–269. Paterakis, M. Air Transport of Goods, A: Legislation. B: Jurisprudence, 1991. Paterakis, St. Monetary Compensation for Moral Harm. 2nd edn. 2001. Paterakis, St. ‘Issues of Moral Harm from Torts Committed Through the Media’. EllDni 48 (2007): 1–15. Pertselaki, M. Damages Because of Tort. 2020. 164

Selected Bibliography Psouni, N. ‘The Modulation of Hereditary Relations in the Content of Law’s 3719/ 2008 Cohabitation Agreement’. TCPL 2 (2009): 18–25. Riga, A. ‘The Institutional Role of the Notary Public in the Cohabitation Agreement Regulated by Law 3719/2008 (First Chapter – Articles 1–13)’. TCPL 2 (2009): 31–33. Roussos, Kl. ‘Causation and Founding of Liability According to Arts. 914, 71 GCC or According to Arts. 914, 922 GCC (Legal Opinion)’. EllDni 35 (1994): 1492–1497. Roussos, Kl. ‘Medical Liability Due to Failure to Diagnose Grounds for the Appropriate Interruption of Pregnancy (Thoughts on the Occasion of the Decision 10/2013 of the Court of Cassation)’. ChrID IΓ/2013: 466–472. Roussos, Kl. ‘Prescription of the Claim Based on Tort’. ChrID) ΣT/2006: 81–91. Saitakis, K. ‘Time of Calculation of Damage in Tortuous Liability’. NoV 60 (2012): 1691–1711. Spiliotopoulos, Sp. Liability of the Air Carrier for Death, Wound or Other Corporal Injury of the Passengers. 1984. Spyridakis, I. Tort According to Article 914, Theoretical Problems and Practical Applications. 1999. Spyridakis, I. ‘Four Issues on Moral Harm’, TPCL 2 (2009): 1027–1029. Spyridakis, I. The Cohabitation Pact of L. 3719/2008. 2009. Spyridakis, I. & E. Perakis (eds), Civil Code: Law of Obligations – General Part. Vol. B/1, 1977. Vol. B/2, 1978. Stamatis, K. ‘Recognition of a Foreign Court Decision Adjudicating Punitive Damages’. NoV 51 (2003): 1553–1558. Stambelou, Chr. ‘Dissolution of the Cohabitation Agreement: Paternity Presumption’. TCPL 2 (2009): 13–17. Stathopoulos, M. In Greek Civil Code, edited by Ap. Georgiades & M. Stathopoulos. 1979, Arts. 297–298, Art. 299. Stathopoulos, M. Law of Obligations: General Part. 5th edn. 2018. Stathopoulos, M. ‘Damages and Protection of the Personality of an Invalid Child’. ChrID Θ/ 2009: 97–106. Stathopoulos, M., Ar. Chiotellis & M. Avgoustianakis. Community Civil Law I. 1995. Trouli, Emm. ‘Medical Liability for Wrongful Life and Wrongful Birth’. Digesta (2008): 384–441. Tsiros, D. ‘Medical Liability: Damages for a Child Born Invalid Because of a Medical Fault Which Deprived the Mother from Aborting’. EllDni 45 (2004): 61–75. Tsolakidis, Z. In Civil Code, edited by Ap. Georgiades & M. Stathopoulos. Vol. IA. 2nd edn. 2016, Arts. 283–286. Vassilakakis, Ev. ‘Possibility to Execute a Foreign Arbitrators’ Decision’. DEE 12 (2006): 459–463. Vathrakokoilis, V. Detailed Interpretation: Jurisprudence of the Civil Code. Vol. A’. 3rd edn. 1994. Vathrakokoilis, V. Analytical Interpretation: Jurisprudence of GCC. Vol. 3. 2006. Vosinakis, A. In Civil Code, edited by Ap. Georgiadis & M. Stathopoulos. 1982, Arts. 924, 925, 931. Zepos, P. Law of Obligations: General Part. Vol. I. 2nd edn. 1955. 165

Selected Bibliography Zepos, P. Law of Obligations: Special Part. 1965. Zervogianni, E. ‘Pure Economic Losses of Third Persons’, KritE 2003/1: 205–261. Zervogianni, E. The Restoration of the Status Quo Ante as a Form of Damage Compensation. 2006. Zervogianni, E. ‘An Alternative Approach of Cases of Uncertain Causation’. Digesta (2006): 347–351. Zervogianni, E. ‘Ambiguous Issues of Alternative Causation: Concurrence of the Act of a Third Person with Hazard or with an Act of the Victim’. EllDni 51 (2010): 949–963. Zervogianni, E. Confluence of Causes and Tortious Liability: Contribution to the Analysis of the Requirement of Causal Link. 2022. Foreign Bibliography Banakas, E.K. Tortious Liability for Pure Economic Loss: A Comparative Study. 1989. Bussani, M. & V. Palmer (eds). Pure Economic Loss in Europe. 2003. Bussani, M. & V. Palmer. ‘The Notion of Pure Economic Loss and Its Setting’. In Pure Economic Loss in Europe, edited by M. Bussani & V. Palmer. 2003, 3 f. Canellopoulou-Bottis, M.C. ‘Hellas’. In International Encyclopedia of Law. 2003. Von Bar, C. & E. Clive (eds). ‘Principles, Definitions and Model Rules of European Private Law’. DCFR. Full edn. Vol. 4. 2009. Christodoulou, K. ‘Pure Economic Loss, Aspects of an Anglosaxon Legal Issue under Greek Law’. RHDI 51 (1998), 599–604. Christodoulou, Ph. In Introduction to Greek Law, edited by K.D. Kerameus & P.J. Kozyris. 3rd edn. 2008, Chapter 6, Law of Obligations, IV, 146–149. Dacoronia, E. ‘Mass Torts: A Greek Approach’. Revue Héllénique de Droit International (RHDI) 47 (1994), 94–96. Dacoronia, E. ‘Tort Law in Greece: The State of Art’. In Studia in Honorem Pelayia. Yessiou-Faltsi. 2007, 57–77. Dacoronia, E. ‘Greece’. In Digest of European Tort Law, edited by B. Winiger et al. Vol. 1: ‘Essential Cases on Natural Causation’. 2007. Dacoronia, E. ‘Greece’. In Digest of European Tort Law, edited by B. Winiger et al. Vol. 2: ‘Essential Cases on Damage’. 2011. Dacoronia, E. ‘The Liability of Public Authorities in Greece’. In The Liability of Public Authorities in Comparative Respect, edited by K. Oliphant. 2016, 195–224. Dacoronia, E. ‘Greece’. In Causation in European Tort Law, edited by M. Infantino & L. Zervogianni. 2017. Dacoronia, E. ‘Greece’. In Digest of European Tort Law, edited by B. Winiger et al. Vol. 3: ‘Essential Cases on Misconduct’. 2018. Dacoronia, E. ‘Greece’. In The Borderlines of Tort Law: Interactions with Contract Law, edited by M. Martin-Casals. 2019, 213–252. Dacoronia, E. ‘Greece’. In Prescription in Tort Law, edited by I. Gilead & B. Askeland. 2020, 379–411. Dacoronia, E. ‘Greece’. In European Tort Law, edited by H. Koziol & B.C. Steininger. 2001–2010. 166

Selected Bibliography Dacoronia, E. ‘Greece’. In European Tort Law, edited by K. Oliphant & B.C. Steininger. 2011. Dacoronia, E. ‘Greece’. In European Tort Law, edited by E. Karner & B.C. Steininger. 2013, 2014, 2019. Dacoronia, E. In Elgar Encyclopedia of Comparative Law, edited by J.M. Smits. 2nd edn. 2012, 371–376. Dacoronia, E. ‘Greece’. In The Recovery of Non-pecuniary Loss in European Contract Law, edited by V.V. Palmer. 2015. Iliopoulos-Strangas, J. La Responsabilité de l’ ’Etat en tant que Legislateur, RHDI 51 (1998), Greece, Athens: Ant.N. Sakkoulas Editions, 311–336. Karakostas, I. Consumer Protection Law. 2012. Stathopoulos, M. & A. Karampatzos. Contract Law in Greece. 3rd rev. edn. 2014.

167

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168

Index

The numbers here refer to paragraph numbers. Accidents mass, 29, 123 road and traffic, 67, 124, 130–141, 164, 189, 192, 201, 206, 214, 257, 266, 270, 287, 309, 325, 327, 330, 332, 334 workers’, 68, 124, 190, 291 Assisted reproduction (artificial fertilization), 14–16 Bona fides (= good faith), 12, 37, 40, 65, 66, 69, 70, 93, 94, 95, 101, 145, 172, 204, 208 Bonos mores (= good morals), 12, 55–59, 93–95, 100–101, 173, 245 Causation / causality cumulative, 201 hypothetical, 204 in general, 72, 128, 149, 196–210, 214, 257, 258, 292, 294, 302, 330–333 necessary, 201 Collective act, 201 Complicity (co-decision and co-execution of the tort), 201 Consent, 173–174, 186, 301 Damages abstract, 218, 226–227 assessment / calculation of, 225–229 concrete, 218, 226–227 direct, 211, 213, 214, 239, 243, 304, 332 equitable limitation of, 230–231 future, 162, 163, 217–221, 297, 306, 310, 325 in general, 212–347indirect, 213–214, 216, 236, 240–243, 287, 332 mitigation of, 223–224

negative – (loss of profit), 154, 219, 220, 224 308, 309 positive, 154, 211, 219, 220, 244 punitive, 347 Defamatory rumours, 98 Disability or disfiguration, 19, 79, 230, 255, 265, 267, 269, 272, 292, 294, 298, 300, 306–310 Dolus / Intention, 34, 48, 59, 60, 63, 91, 201, 291 Duty of care, 65–70, 145 European Union (Regulations and Directives), 1–2, 8–9, 28 Exemption clause (GCC 332), 195 Expropriation, 337–338 Family of the victim, 191, 259, 260, 264, 287, 313, 314, 317–320 Fault concurrent / contributory, 174, 187–194, 207, 210, 264 in general, 60–64 Force majeure, 72, 127, 131, 165, 206 Free concurrence of claims, 35–39 Free union, 318, 319, 321, 322 Funeral expenses, 238, 246–250, 257, 330, 332, 334 Generally recognized rules of international law, 27 Imputability, 71, 74–80, 114, 183 In natura compensation, 155, 211, 232, 233 Injunctive relief, 346 Injury

169

Index to a person’s body or health, 235, 237–239 to reputation and privacy, 96–99 Insurance, 127, 201, 206, 230, 234, 268, 339–342 International conventions, 27, 124–125, 160 Judiciary, 18–23, 280, 282 Lateral abettors, 201 Liability concurrence of contractual and delictual, 35–39, 284 criminal, 34 delictual, 35–39, 48, 56, 102, 128 environmental, 147–160 exclusion of tortuous, 64, 195 for service, 146 for things and animals, 117–120 in general, 51, 82 joint and several, 114, 196–210 of builders and architects (and others), 88 of legal entities, 25–26, 97, 109–112, 149, 153, 166, 182, 311–312 of legal practitioners, 85–87 of medical practitioners, 83–84 of parents, teachers and instructors, 113–116 of public authorities, 89–92 precontractual, 40–42 product, 142–145 professional, 83 strict, 31, 81, 88, 118, 121–160, 201, 239 vicarious – (employer/employee), 102–105 vicarious – (independent contractors), 106–108 Loss non-pecuniary, 215, 259–334 of maintenance or services, 237–239, 251–255 of profit (negative damage), 154, 163, 211, 219, 220, 308, 309 pecuniary, 44, 46, 115, 120, 211, 215–216, 219, 244–258, 306, 308, 310, 330–334 pure economic, 216 Marital duty of loyalty, 44–46

170

Minors, 71–80, 85, 114, 116, 150, 165, 192–194, 221, 264, 275, 308 Moral harm, 35, 38, 54, 97, 190–191, 193, 215, 259, 261–263, 266, 267, 269, 270, 273, 278, 279, 281, 284–312, 316, 327–329 Negligence, 34, 37–38, 48, 60–64, 71, 82, 84, 86, 87, 91, 108, 171, 187, 193, 195, 201, 276, 291, 295, 298, 300 Omission, 34–37, 63, 69–70, 86–87, 89–92, 109, 111, 114, 135, 141, 147, 149, 169–171, 188, 190, 192 Pain and suffering, 13, 107–108, 190, 191, 193, 194, 215, 257, 259–263, 273, 274 276–279, 291, 313–319, 323–330, 332, 334 Personal injury and death, 158, 196, 235–334 Persons lacking consciousness, 74–76, 186 Prescription in general, 36–37, 42, 87, 161–171 suspension and interruption of, 161–171 Principle of proportionality, 58, 87, 167, 278–283 Protection of a person’s name, 97 of personality, 96, 152–153, 303 of the public interest, 34, 52, 54, 337 Recourse, 134–135, 202, 205, 209, 210, 290 Restitution for unjust enrichment, 344–345 Rights absolute, 37, 43, 45, 98, 304 abuse of, 10, 93–95 relative, 47 Self-help and self-defence, 180–185 Social security, 343 Sources of private law, 27–29 State of emergency, 175, 178, –179, 182, 231 Supervision, 6, 102, 106, 113–118, 121, 194, 264, 295 Theory causa adequata, 197–198, 214, 331 conditio sine qua non, 196–198, 214, 331

Index of ‘criminal acceptance’, 63 of the protective scope of the rule of law, 53, 158, 236, 332 Third person interference with contractual relations, 100–101 Tortfeasor accessory of the, 201 instigator of the, 201

Unlawful abstraction of a thing, 335–336 Unlawfulness, 49, 51–54 Unwritten rules of prudence and diligence, 66 Wrongful birth, 292–305

171

Index

172

SECOND EDITION EUGENIA DACORONIA

Derived from the renowned multi-volume International Encyclopaedia of Laws, this book provides ready access to how the legal dimension of prevention against harm and loss allocation is treated in Greece. This traditional branch of law not only tackles questions which concern every lawyer, whatever his legal expertise, but also concerns each person’s most fundamental rights on a worldwide scale.

Tort Law in Greece

Tort Law in Greece

Following a general introduction that probes the distinction between tort and crime and the relationship between tort and contract, the monograph describes how the concepts of fault and unlawfulness, and of duty of care and negligence, are dealt with in both the legislature and the courts. The book then proceeds to cover specific cases of liability, such as professional liability, liability of public bodies, abuse of rights, injury to reputation and privacy, vicarious liability, liability of parents and teachers, liability for handicapped persons, product liability, environmental liability, and liability connected with road and traffic accidents. Principles of causation, grounds of justification, limitations on recovery, assessment of damages and compensation, and the role of private insurance and social security are all closely considered.

TORT LAW IN GREECE SECOND EDITION EUGENIA DACORONIA

Its succinct yet scholarly nature, as well as the practical quality of the information it provides, make this book a valuable resource for lawyers in Greece. Academics and researchers will also welcome this very useful guide, and will appreciate its value not only as a contribution to comparative law but also as a stimulus to harmonization of the rules on tort.

EUGENIA DACORONIA