| “Intentional damage contrary to public policy” is an issue unavoidable when one investigates tort law on the base of the distinction between protection of rights and protection of interests. At the time it was established, Article 826 of the German Civil Code was not meant to connect law with extra-legal norms such as morals and customs. Later doctrinal interpretations attributed two categories of functions to Article 826, that is, the essential and the formal functions. Legal scholars became increasingly critical of the essential functions with “contrary to public policy” as the criteria for judgment, and the viewpoint that the protection of pure economic loss as the core function of Article 826 emerged in the scholarship. The essence of the intention requirement is to maintain the foreseeability for the actor in the field of pure economic loss, which lacks of typical social obviousness. The intention requirement was diluted to some extent in legal interpretation, but it should not be reduced to gross negligence. The determination of whether action is “contrary to public policy” is not beyond the law, but also not within the constitution or the general legal spirit, but within case decisions. With reference to dynamic system theory, domestic cases should be used to build our case-types of what is “intentional damage contrary to public policy”. The concept of pure economic loss does not clearly delineate a category, but refers to a multitude of things, and for this there exists no general protective rule. “Intentional damage contrary to public policy” is just a minimum rule of the protection of pure economic loss. A protective system of three layers should be built up, comprising special statutes, protective statutes and “intentional damage contrary to public policy”. |
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