Da Verbindungen, welche Wasserstoff, Schwefel (sowohl zweil) wie auch sechswertigen 7) und Carbonyl a m asymmetrischen Kohlenstoffatom enthalten , viele in dynamisch-stereochemischer Hinsicht interessante Verhlltnisse darbieten, habe ich auf Veranlassung des Hrn. Prof. B. H o l m b e r g eine Untersuchung der Stereochemie der voraussichtlich leicht zuganglichen iithylmercapto-bernsteinsaure und ihrer Oxydationsprodukte begonnen. Als Vorarbeit und erster Abschnitt dieser Untersuchung wurden die folgenden Versnche uber die Darstellung der drei stereoisomeren Formen dieser Siiure unternommen.Wie ein gernischter ThioHther R'.S.R" im allgemeinen auf zwei verschiedenen Wegen, z. B. :
I) 0. H i n s b e r g , B 41, 2536 [1908]; M. Gaadar und S. Smiles, SOC. 93, 1833 [1909]. Vergl. jrdoch die SulEor~bildung in einagen Fallen: 0 . H i n s h e r g , B. 43. 289 [1910]: R. P u m m e r e r , B. 43, 1407 [1910].
The decision of the BGH was based on the following set of facts: As a result of a traffic accident in August 1983, the plaintiff, who was then 46 years old and worked as a telephone technical operator with the Bundespost, suffered serious injuries to the chest and throat. The plaintiff, who had already suffered injuries as a result of accidents in the years between 1965 and 1982 was almost completely unfit for work following the new accident. Stays in various different clinics brought no noticable improvement in his condition. In particular he suffered pains in the areas of the chest, abdomen and back. The plaintiff was adjudged unfit for work and pensioned off with effect from 1 November 1985. Claiming that he was still suffering from the consequences of the accident, and that his pensioning off was also attributable to the event, the plaintiff claimed, inter alia, damages for pain and suffering, which he considered should be assessed at at least 25,000DM. The Landgericht rejected the claim. The Oberlandesgericht awarded damages of 50,000DM. The defendant's appeal on a point of law to the BGH was unsuccessful. According to the BGH, a tortfeasor is in principle liable for the psychological damage that flows from his tortious act - even if it arises from the prior susceptibility of the injured party to that kind of damage, or a nervous disorder. The only circumstances in which liability will not be imposed is when the event that causes the harm is trivial and does not have a direct impact on the degree of damage suffered by the injured party. From a procedural point of view, no upper limit is imposed on the judge in his assessment of the damages considered appropriate under § 308 ZPO by the plaintiff's claim for a minimum amount or suggestion of an indicative figure.
Both judgements of the German Federal Supreme Court concern the effects of final judgements on later proceedings. A decisive factor is whether the issues arising in the later proceedings are to characterised as new facts which are therefore not affected by the earlier judgement. The judgement of the Supreme Court of 14.7.1995 had the following facts: The owners of a piece of land sued in the first proceedings for a declaration that the owners for the time being of that piece of land had an easement in the form, inter alia, of a right to come and go on part of a road over neighbouring property, and as a subsidiary claim they sought a right of a way as a necessity. The claim as to the right of way was dismissed by means of a binding judgement, because the stretch of road was held to be part of the public one. But this decision was quashed, and after the first proceedings had ended, it was established in a binding judgement of an administrative court, that the road was not a public highway. The same plaintiffs therefore brought new proceedings against the same defendant seeking to ensure that their right to come and go over the disputed stretch of road was not impeded, and as a subsidiary claim that a right of way of necessity should be recognised. According to the Supreme Court, the earlier judgement did not stand in the way of a judgement in these later proceedings. The headnote to the case states: 'If an action for a declaration concerning the existence of a traditional right of way is in part dismissed because there is a public highway there anyway, and if later the administrative authorities and courts deny the existence of a public highway, the res judicata effect of the earlier judgement does not hinder a new action based on the existence of the easement.' The judgement of the Supreme Court of 16.10.1995 had the following facts: A concluded a contract in 1988 under which he bought shares in B for 9360, DM payable in 124 monthly installments. The contract was only partly performed by A. By a final judgement of 4.11.1992, A was required to pay a total of 8256,DM. In a solicitor's letter of 29.3.1993, A exercised his purported right to withdraw his agreement to the contract in reliance on the Law on the rescission of doorstep sales, arguing that the employee of V-GmbH which B had entrusted with the sale of its shares, and in whose home A had given his agreement to the contract, had not given him the required information about his right of rescission, but had kept it to himself with tortious intent. The withdrawal of his agreement formed the basis of an action by A to prevent execution of the agreement formed the basis of an action by A to prevent execution of the judgement of 4.11.1992 (Vollstreckungsgegenklage). In the earlier proceedings, A had not disputed B's claim that information about his right of rescission had been given to A, and that he had confirmed this by by his signature. A took the view that enforcement of the earlier final judgement was impermissable because he had now withdrawn his agreement to the contract which formed the basis of that judgement. In addition he argued that he had a claim based on damage caused by action contrary to bonos mores, because B was vicariously liable for the fraudulent actions of V-GmbH. The landgericht dismissed the Vollstreckungsgegenklage. A's appeals to the Court of Appeal and the Supreme Court were unsuccessful. In this case, in the opinion of the Supreme Court, the res judicata effect of the earlier judgement hindered a judgement in favour of A in later proceedings. The withdrawal of agreement to a contract under the Law on the rescission of doorstep and other similar transactions (HWiG) was not a new fact within the meaning of 767(2)ZPO; it was not to be characterised as an event creating or transforming rights, but rather as a defence to a claim.
The decision of the BverfG was based on the following set of facts. The appellant to the BverfG had been unsuccessful in several claims for unfair dismissal before the Schwerin Arbeitsgericht. On appeal to the Landesarbeitsgericht the grounds of appeal, prepared by her legal representative, a lawyer from Hamburg, reached the Landesarbeitsgericht in Rostock the day after the expiry of the extended deadline for filing those grounds. The appellant brought an application for reinstatement of the case within the time allowed and, as justification for this, explained that on the last day of the period allowed for filing the grounds of appeal, unsuccessful efforts had been made right up until 20.31 in the evening to send the relevant information by fax from Hamburg to the court in Rostock. It remained unclear whether this lack of success was attributable to a defect or absence of paper in the receiving fax machine at the Landesarbeitsgericht, or rather to a fault in the line. A telephone check on the fax line had indicated that the line was free. The appeal to the Landesarbeitsgericht was rejected as inadmissible, without clarifying the cause of the failed fax transmission. An appeal on a point of law was also unsuccessful, but the appeal on a point of constitutional law succeeded. If a court permitted documents that must be received within a prescribed period to be transmitted to it by fax, then in the view of the BverfG the special risks that arise from the technical features of this means of communication - such as, in particular, problems with the receiving machine but also line faults - should not have to be borne by the person using this means of communication, but should instead be the responsibility of the court. By choosing an authorised method of communication, making appropriate use of a properly functioning machine for transmission and dialing the recipient's number correctly, the user has done all that is necessary on his part to meet the procedural deadline as long as he begins the transmission sufficiently early that under normal circumstances it can be anticipated that transmission will be finished before 24.00. It cannot be expected of a lawyer who has arranged his work timetable in the expectation of making a fax transmission of his written arguments that when the chosen method of transmission fails, because of a defect in the receiving machine or because of line faults, he should instantly secure a means of contacting the court other than his chosen method, which was after all officially authorised by the court.
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