Definition and Significance of Defensive Necessity
Der Defensive Necessity is a legal term from German criminal and civil law that describes a specific form of necessity. It entitles a person to carry out certain otherwise unlawful acts to defend against an imminent and unlawful attack on their own or another’s legal interests. The legal basis is primarily Section 34 of the German Criminal Code (StGB) and Section 228 of the German Civil Code (BGB). Defensive necessity has numerous overlaps with the law of self-defence and the general justifying necessity.
Legal Basis of Defensive Necessity
Defensive Necessity in Criminal Law
German criminal law recognizes defensive necessity in particular as the standard case of justifying necessity under Section 34 StGB. In emergency situations, this introduces the principle of balancing interests:
“Whoever commits an act in a present, otherwise unavoidable danger to life, limb, freedom, honor, property or another legal interest in order to avert the danger from themselves or another, does not act unlawfully if, when weighing the conflicting interests, the protected interest substantially outweighs the impaired interest. However, this applies only if the act is an appropriate means of averting the danger.”
This element of balancing interests distinguishes defensive necessity significantly from self-defence under Section 32 StGB, in which such a balancing of interests does not generally take place.
Defensive Necessity in Civil Law
In civil law, Section 228 BGB regulates defensive necessity. According to this, damaging or destroying another person’s property is justified if it is required to defend against a present danger originating from that property itself:
“Whoever damages or destroys another person’s property to avert an imminent danger to themselves or another originating from that property, does not act unlawfully, provided that the avoidance of the danger is not disproportionate to the resulting damage.”
This provision primarily protects the physical integrity and other significant legal interests of the actor or a third party.
Requirements of Defensive Necessity
1. Situation of necessity: Present Danger
A present danger must exist. A danger is any situation in which the probability of harm to a legally protected interest is so high that immediate intervention appears necessary. The danger must be present, meaning the harmful state must be imminent, already occurred, or ongoing.
2. Act of necessity: Requirement and Appropriateness
Die Act of necessity must objectively be required to avert the danger. There must be no milder, equally effective means available to eliminate the danger. Furthermore, the action must also be appropriate The violation of the legal interest as part of defensive necessity may not substantially outweigh the interest intended to be protected.
3. Awareness of the situation and intent to rescue
Awareness of the danger (knowledge) and the intent to rescue are subjective requirements for invoking defensive necessity.
Distinction: Defensive Necessity, Self-defence, and Excusing Necessity
Defensive necessity must be distinguished from:
- Self-defence (§ 32 StGB): A special case that does not require a balancing of interests and protects (law) against injustice. Defensive necessity, on the other hand, permits limited interference with the legal interests of others.
- Excusing Necessity (§ 35 StGB): This precludes culpability if the perpetrator is in an exceptional situation in which there is no other option. In a case of defensive necessity, the unlawfulness is already removed.
Scope and Significance in Tort Law
If damage to another person’s property occurs in the course of defensive necessity, liability may be excluded (§ 228 BGB). However, compensation between neighbors or reimbursement of expenses may be possible in certain cases. Here, the proportionality of the act plays a decisive role.
Examples of Defensive Necessity
- Fire protection: If someone breaks down a neighbor’s door in an emergency to extinguish a fire and prevent it from spreading, they can invoke defensive necessity.
- Danger from animals: Killing another person’s dog that is attacking a person and cannot otherwise be stopped is a classic example.
- Mitigating dangers during disasters: Cutting down a tree in a private garden to prevent substantial damage to a neighbor’s house in a storm is covered by defensive necessity.
Limits and Exclusion of Defensive Necessity
A defensive necessity is particularly excluded when the balancing of interests favors the impaired legal interest. Necessity may also be excluded if the danger was self-induced or is only minor. Moreover, actions must always observe the principle of ultima ratio, meaning they must be chosen as the last resort to avert danger.
Conclusion
Defensive necessity is an important justification in German law. It specifically serves to balance conflicting interests and enables appropriate defensive measures in emergency situations. Key characteristics are the presence of imminent danger, the necessity and appropriateness of the action, and a comprehensive balancing of interests. In practice, defensive necessity plays a major role in protecting both individual and community interests, as it provides legal certainty in defending against serious dangers.
Frequently Asked Questions
When does a defensive necessity exist in the legal sense?
A defensive necessity exists when someone seeks to avert a danger to themselves or another and thereby commits an act that would otherwise be unlawful (§ 34 StGB). Legally, what matters is that there is a present danger to a legally protected interest such as life, bodily integrity, freedom, honor, property, or another legally protected interest. The person affected must not have any other way to act: they must be in an emergency situation in which no milder, equally effective remedy is available to avert the danger. In addition, the infringement caused by the act of necessity must not substantially exceed the interest at risk (so-called balancing of interests). Furthermore, the conduct must not have been culpably provoked and there must be no legal obligation to accept the danger (e.g., in certain professions).
What requirements must be satisfied for a lawful defensive necessity?
To assume a lawful defensive necessity, several requirements must be met cumulatively: First, there must be a present danger to a legal interest; the danger must not merely be possible, but must actually and imminently threaten. Second, the act to avert the danger must be suitable and required, meaning no other, less intrusive means is available. Third, an interest balancing must be carried out: the protected interest must significantly outweigh the impaired one. Fourth, the necessity must not be the fault of the actor (self-induction or provocation of danger). Finally, the act of necessity is only lawful if the actor is not legally obliged to accept the danger.
How does defensive necessity differ from self-defence?
Defensive necessity (§ 34 StGB) and self-defence (§ 32 StGB) are two distinct grounds for justification in German criminal law. While defensive necessity allows for averting a danger regardless of its origin, self-defence is directed exclusively against unlawful attacks by a person. Self-defence is permitted against any attacker, and—unlike defensive necessity—no comprehensive balancing of interests is carried out: in self-defence, for example, a minor interest (e.g., property damage) may be defended even against a higher interest (e.g., the health of the attacker) as long as the action is appropriate. Defensive necessity, however, always requires a balancing of interests and presupposes that the protected good substantially outweighs the impaired one.
What role does the balancing of interests play in defensive necessity?
Unlike self-defence, defensive necessity requires a careful balancing of the affected legal interests. According to § 34 StGB, the interest impaired by the act of necessity must not substantially outweigh the protected legal interest. This means that the individual significance, rank, and weight of the legal interests must be weighed in each case. For example, it is generally not legally justified to endanger a high-value legal interest such as life or limb of another to save a low-value item (e.g., a magazine). The decision always depends on the particular circumstances and the relationship between the affected interests. Courts carefully undertake this balancing in disputes and take into account the intensity of the danger and available alternatives.
Is defensive necessity also recognized for danger to third party rights?
Yes, defensive necessity applies to the protection of both one’s own and another’s legal interests. The law explicitly states that a person may avert danger to “a legal interest, whether their own or that of another.” Therefore, someone who averts a danger to another person or their property can, within the scope of § 34 StGB, also be entitled to commit an act that would otherwise be unlawful. The requirements—especially the necessity of the act, the balancing of interests, and the absence of an obligation to bear the danger—must be fully met in such cases as well.
What restrictions apply to defensive necessity regarding the duty to bear danger?
An important ground for exclusion of defensive necessity is the legal obligation to bear certain dangers. Such duties to bear danger regularly exist for particular professions and situations (e.g., police, fire brigade, rescue services), in which the accepted danger is a typical part of the area of responsibility. Likewise, acceptance of danger by contract or law may mean defensive necessity is not justified (e.g., for tenants in respect of typical risks associated with the premises they rent). Where such a duty exists, the justification for defensive necessity lapses and the action is no longer justified.
Is defensive necessity also of significance in civil law?
Yes, defensive necessity also applies in civil law and is regulated there in § 228 BGB (defensive necessity) as well as § 904 BGB (aggressive necessity). While defensive necessity permits defence against an attack originating from a thing (comparable to criminal law defensive necessity), in the case of aggressive necessity another person’s property may be damaged if this is necessary to avert a present danger and the interest to be protected substantially outweighs the impaired interest. Civil law provisions are closely related to the concept of defensive necessity in criminal law, but have particular differences regarding compensation and the scope of justification.
