Rechtswidrigkeitszusammenhang und Schutzzweck der Norm

Under the legal doctrine of “lawful alternative conduct” a tortfeasor claims that harm would have occurred even if he had exercised due care and that, consequently, the he or she should not be liable for any damage. Currently, under the dominant view in the German jurisdiction, the issue is approached on a case by case basis with reference to the purpose of the respective breached duty of conduct. The author concludes that this approach is not convincing, referencing the dogmatic foundations of German liability law. The author also analyses the concept of the “context of unlawfulness”, whereby a concept of prevention is relied upon to approach the issue of “lawful alternative conduct”. Following a critical examination of the existing concepts, the author proposes another dogmatic approach.