The Reduction Clause - A Comprehensive Analysis

The Reduction Clause (RC) is currently one of the hot topics in European tort law. The term RC denotes a legal norm which enables the judge in exceptional cases to lower the amount of damages paid by a tortfeasor if full compensation would lead to an "unreasonable and oppressive" burden. Most RCs contain a list of elements that have to be taken into consideration by the judge when assessing the sum of indemnity; particular emphasis is often placed on the financial situation of the parties and the degree of fault. The European legal landscape is very diverse when it comes to this issue. There are now 10 countries which have some kind of explicit RC in their legal system; and current national reform projects (like the Austrian and the Czech) aim at introducing such a provision into their national tort law. Many other legal systems in Europe, however, among them those considered the most influential ones (like the German, the French, or the English), do not have a RC. Against this background, it is most interesting that the Principles of European Tort Law (PETL), recently presented by the "Research Group on European Tort Law," contains a RC in Art 10:401. The same is true for Art 6:202 of the tort law provisions (draft 2005) of the "Study Group on a European Civil Code." My research project, which forms an integral part of my Habilitation, is designed to be an in depth analysis of the idea of a RC, whose results can also be used to provide practical guidelines for these current reform and harmonization projects. I will conduct the first comprehensive comparative study on the issue. This will form the basis for addressing the deeper doctrinal, economic, and philosophical questions involved. I started my comparative research after I had completed my doctoral studies at the LFUI (as the first student ever to do so sub auspiciis praesidentis) in 2005. Currently I am continuing this research at the ECTIL in Vienna and I have been invited to come to the MPI in Hamburg to complement my comparative studies and to analyze the interaction of a RC with other areas of law (e.g. insurance law, insolvency law, contract law, social security law). I also conducted research on the economic and philosophical aspects of a RC at Yale Law School (YLS) in the course of my LL.M. studies there. YLS, consistently ranked as the top law school in the US, provided a perfect environment for this through its research-oriented LL.M. program. I have now been invited to return to YLS to further pursue my research in the above-mentioned areas, which is a great honor. It is the first time that an Austrian does so "in residence," having access to all research facilities Yale has to offer and supervised by a committee consisting of YLS faculty members for up to 5 years. The professors of this committee are world-leaders in the core areas of my research project (e.g. Prof. Whitman in comparative law, Prof. Coleman in the area of "philosophy of tort law," and Prof. Calabresi in "law and economics.") They will help me to successfully apply the most recent developments, techniques, and methodological approaches predominantly developed and cherished in American legal scholarship to an analysis of the RC. It is my aim to make use of these innovative ideas and approaches and to introduce them into the Austrian and European scholarly discussion on tort law. I will further be supported by a number of European scholars (first of all Prof. Koch) in my effort to analyze the applicability of these ideas within the framework of "European legal science" (Merryman.) After completing my studies at the YLS and the MPI, I will continue to work at the Department of Civil Law of the LFUI. My research abroad will enable me to be a more valuable researcher (especially in comparative tort law, a main focus at our department) and teacher (particularly in our new branch of study, "Economy and Law"). Based on this research project I do not only plan to publish a papers but I will also be able finish my Habilitation more quickly.