The decision of the OGH was based on the following set of facts: the parties met through a common acquaintance. At the suggestion of the defendant they decided to go to a bar, along with some others. Since the claimant had already had some alcohol, and did not have a driving licence with him, the parties agreed that the defendant should drive to the bar in the claimant's car. It was not possible to establish whether there had been any further discussion about what should happen in the case of an accident, and in particular whether the question of liability in such a case had been raised. On the way to the bar, the defendant was responsible for causing an accident through bad driving, and the claimant's car was a write off.
The lower courts allowed the claim for compensation in principle. The defendant's appeal in revision was also unsuccessful. The OGH left open the question whether the parties had entered into a contract. In such a case the defendant was responsible for returning the borrowed item intact. If there was no contract, the same result would be reached through a tort claim based on negligent damage to property under §§ 1295 ff. ABGB, since the accident was the result of driver error and this error - because of the dangerous nature of the activity undertaken - indicated the existence of an objective lack of care sufficient to make the defendant's action unlawful, as well as a subjective fault element. The claim thus identified existed even when the owner of the property allowed the defendant at his suggestion to drive a car on a shared journey.
The following contributions examine the judgment from the standpoint of German and Greek law.European Review of Private Law