Abstract
The most comprehensive genetic technology related legislation in Hungary is the Act No. XXVII of 1998 on genetic technology activity as it is amended1 by the Act no. CVII (further referred to as the Genetic Technology Act). This Act provides for a special liability regime for genetic technology activity in general2 as well as for liability for damage caused as a result of incomplete segregation of GM and traditional crop production. As a general rule § 27 of the Genetic Technology Act provides that as genetic technology activity may imply considerable hazard the liability for dangerous activities (§ 345 ff. of the Hungarian Civil Code) shall be applied to liability for damage caused by genetic technology activity. A similar regime is established for liability for incomplete segregation. § 21/D subpars. (5) and (6) of the Genetic Technology Act provide that for liability for damage caused as a result of incomplete segregation of GM and traditional crop production, § 345 and § 346 of the Hungarian Civil Code (the strict liability regime for dangerous activities) are to be applied. If, however, the victim as the owner or user of the neighbouring land has consented in written form to the growing of genetic plants, according to § 21/C of the Genetic Technology Act, the general liability regime is to be applied (according to §§ 339–342 and § 344 of the Hungarian Civil Code).
The amendment, which came to effect on 22 December 2006, establishes the special liability regime for incomplete segregation of GM crop production from the traditional ones.
I.e. damage caused by genetic technology activities such as establishing an institution (e.g. a laboratory) that performs genetic technology activity, modification of genes, utilization of genemanipulated micro-organisms in closed systems, emission, export, import, putting the output of genetic technology activity into circulation and elimination.
This is a preview of subscription content, log in via an institution to check access.
Preview
Unable to display preview. Download preview PDF.
References
Indeed just as it has been established by Walter Wilburg. See W. Wilburg, Entwicklung eines beweglichen Systems im bürgerlichen Recht (1950) = The Development of a Flexible System in the Area of Private Law (transi. by H. Hausmaninger, 2000) and idem, Zusammenspiel der Kräfte im Aufbau des Schuldrechts, 163 Archiv für die civilistische Praxis, 1964, 364 ff.
Bírósági Határozatok (BH) 2005 no. 354 (Supreme Court, Legf. Bír. V. Pfv. VII. 20.620/2004).
Causation is established in these special forms of liability only on the level of theoretical explanations, e.g. the caretaker is a cause of the harm caused by the child in so far as she did not act while caretaking as was generally expected. F. Petrik, A kártérítési jog (1991) 30.
Gy. Eörsi, Kötelmi jog általános rész (8th ed. 1988) 269.
It is a kind of theory of adequate causality. Gy. Eörsi, A polgári jogi kártérítési felelősség kézikönyve (1966) 263.
F. Petrik (supra fn. 7) 27. The third precondition (prevention) is stressed in legal theory but does not appear explicitly in court decisions.
Gy. Eörsi, A közvetett károk határai, in: Emlékkönyv Beck Salamon születésének 100. évfordulójára (1985) 59–68.
Eörsi reckons that foreseeability has not only a limitative effect, but an extensive one also. Abstract foreseeability on the one hand has a limitative effect, because only actual foreseeability establishes liability, but actual foreseeability on the other hand may also be established in cases where the concrete process of the case could not have been foreseen. Gy. Eörsi (supra fn. 13) 62.
That was the reason for dismissing the claim against a hospital in a case where a mentally ill person fled from the hospital, got on a train without a ticket and as the controller asked for the ticket, he committed suicide by jumping out of the train. Gy. Eörsi (supra fn. 13) 62.
This is the case where someone cuts a telecommunication earth-cable with a machine during excavation works and thousands of people (and factories) remain without telephone services and because of the damaged cable it is impossible to call the police, the fire brigade or the ambulance. In this case the tortfeasor shall not be liable for all these further consequential losses, because they are too remote. Gy. Eörsi (supra fn. 13) 63.
This may be used as a limitative factor if the tortfeasor tempts a child into committing a crime and because of this the child’s mother commits suicide. The tortfeasor shall not be liable for the death of the mother. Gy. Eörsi (supra fn. 13) 63.
This is the basis for the limitation of liability if someone spoils a bridge or causes an accident and because of it the traffic is diverted to a longer route. The diverting of the traffic is an event, which may occur for a lot of reasons, even (and mostly) without someone’s fault; that is why it is an event that everyone must count on and as such it is a general risk of life (allgemeines Lebensrisiko). This risk must be run with everyone and others cannot be held liable for this. Gy. Eörsi (supra fn. 13) 64.
If in a so-called cable-case a whole district remains without electricity because of the conduct of the tortfeasor whose negligence was not gross, the liability covers the costs of reparation and the economic loss of the electricity operator but not the harms and losses of the people and businesses who had been left without electricity. Gy. Eörsi (supra fn. 13) 65.
A Magyar Népköztársaság Polgári Törvénykönyve — az 1959. évi IV. törvény és a törvény javaslatának miniszteri indokolása [Motivation for the Hungarian Civil Code] (1963) The motivation for § 339.
F. Petrik (supra fn. 7) 27.
A. Dósa, Az orvos kártéritési felelőssége (2004) 99.
B. Kemenes/ L. Besenyei, A kártérítés általános szabályai, in: Gy. Gellért (ed.), A Polgári Törvénykönyv Magyarázata (2002) 110 ff., 1120.
K. Benedek/ M. Világhy, A Polgári Törvénykönyv a gyakorlatban (1965) 349.
Motivation for the Hungarian Civil Code (supra fn. 20), The motivation for § 344.
The court practice, however, has never been consistent in following the approach that a conduct which results in damage to others is unlawful and from this follows that causing harm is always unlawful. The courts very often try to find a certain legal norm which had been infringed by the tortfeasor in order to establish liability even if this would not be a necessary requirement or they hold simply that the tortfeasor’s conduct was not unlawful if they think rejecting the claim would be just. The violation of a certain statutory provision may provide — despite the original theoretical background of tort law regulation which would not make it necessary — an important reference point to the courts in establishing unlawfulness and liability. The court practice in Hungary is in a state of change regarding the doctrine of unlawfulness. See BH 2005 no. 12. (Supreme Court, Legf. Bír. Pfv. III. 22.883/2001.); BH 2005. no. 17. (Pécs High Court of Justice, Pécsi Ítélőtábla Pf. III. 20.356/2004.) The courts in these decisions rejected the claims of the plaintiffs’ by simply referring to the absence of unlawfulness without finding and referring to a norm which would allow causing harm explicitly as it would have been required by the general doctrine. Neither of the cases were connected to the application of an administrative law regulation.
Gy. Eörsi (supra fn. 11) no. 221. The defences are e.g. the consent of the aggrieved person, necessity, the authorized exercise of rights etc.
Gy. Eörsi (supra fn. 11) no. 252.
B. Lenkovics, A környezetszennyezés polgári jogi szankciói in: L. Asztalos/ K. Gönczöl (eds.), Felelősség és szankció a jogban [Liability and sanction in the law] (1980) 317 ff., 324.
E.g., BH 1999. no. 449 (Supreme Court, Legf. Bír. Pfv. I. 23.084/1998. sz.); BH 2000. no. 244 (Supreme Court, Legf. Bír. Pfv. X. 21.156/1999. sz.).
E.g. in a very recent decision, the Hungarian Supreme Court established that the landowner’s claim against a cell phone company for compensation in depreciation of land value because the company built a transmission tower on the neighbouring land shall be assessed under general tort law rules. BH 2006. 184, Legf. Bír. Pfv. III. 20.852/2005. sz.
The main conceptual feature of pure economic loss is that it is a loss without antecedent harm to the plaintiff’s person or property, which is not a consequential loss in the same patrimony in which property has been damaged and which is not the loss of the plaintiff, who as a person has been injured. Pure economic loss is “harm not causally consequent upon an injury to the person (life, body, health, freedom or other rights to personality) or to property (tangible or intangible assets).” H. Koziol, Compensation for Pure Economic Loss from a Continental Lawyer’s Perspective, in: W.H. van Boom/ H. Koziol/ Ch. Witting (eds.), Pure Economic Loss (2004) 141 ff.
Gy. Eörsi (supra fn. 13) 62. According to him, the employer sends his employee (a mechanic who has special skills in repairing certain machines) to a factory located in another part of the country. On his way to the railway station, a car runs down the mechanic. According to Eörsi the driver of the car shall be liable to the employee to compensate his lost earnings (salary etc. for the period he is unable to work) but not to the employer for the loss resulting from the stoppage of the factory because of the failure or further delay of repair. The reason of the limitation here is that the economic loss suffered by the employer is out of the normal consequences and was too unexpected for the tortfeasor.
Gy. Eörsi (supra fn. 13) 63 and 65.
M. Bussani/ V. Palmer (eds.), Pure Economic Loss in Europe (2003) 12.
M. Bussani/ V. Palmer (supra fn. 37) 12. Van Boom categorizes these cases as “interference with resources” and also attaches the cable cases here. See W.H. van Boom, Pure Economic Loss: A Comparative Perspective, in: W.H. van Boom/H. Koziol/Ch. Witting (eds.), Pure Economic Loss (2004) 26.
The decision was not a Supreme Court decision but a first instance decision, which has not been appealed by the plaintiff and as such may only be taken into account with reservation as a reference. F. Petrik (supra fn. 7) 31.
Gy. Eörsi (supra fn. 13) 65. If the person who has to use the diversion suffers damage in an accident he cannot be compensated on the basis that he would not have been involved in an accident if he had not been forced to use the alternative route, because the link of causation is abnormal and is outside of the ordinary probability.
M. Bussani/ V. Palmer (supra fn. 37) 13. See also W.H. van Boom (supra fn. 38) 19. A typical illustration here may be the facts of the English case Hedley Byrne & Co. v. Heller & Partners [1964] Appeal Cases (AC) 465 for the liability for negligent misstatements. See for a detailed analysis B.S. Markesinis/S.F. Deakin, Tort Law (3rd ed. 1993) 86. ff.; and for the liability for professional services toward third parties see White and another v. Jones and others [1993] All England Law Reports (Court of Appeals) 481.
Gy. Eörsi (supra fn. 11) no. 254.
BH 2003. 249 (Legf. Bír. Gf. VI. 30.036/2002. sz.) EBH2001. 544 (Legf. Bír. Gfv. II. 30. 016/2001. sz.) BH 2000. 541 (Legf. Bír. Pfv. III. 23.402/1998. sz.) Supreme Court decisions.
Editor information
Rights and permissions
Copyright information
© 2008 Springer-Verlag/Wien
About this chapter
Cite this chapter
Menyhárd, A. (2008). Economic Loss Caused by GMOs in Hungary. In: Koch, B.A. (eds) Economic Loss Caused by Genetically Modified Organisms. Tort and Insurance Law, vol 24. Springer, Vienna. https://doi.org/10.1007/978-3-211-77988-0_16
Download citation
DOI: https://doi.org/10.1007/978-3-211-77988-0_16
Publisher Name: Springer, Vienna
Print ISBN: 978-3-211-77987-3
Online ISBN: 978-3-211-77988-0