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LIABILITY FOR ONE’S OWN CONDUCT3.2. WRONGFULNESSCHAPTER THREELIABILITY FOR ONE’S OWN CONDUCT3.2.4. GROUNDS OF JUSTIFICATION3.2.4.B. SELF-DEFENCEIntroductory Notea) It is accepted in all legal systems examined herein that someone who protectshimself or herself, or another person, from an attack by someone else does notcommit a wrongful act if he or she proceeds reasonably under the circumstances. 1In French law, courts have developed a general theory of légitime défense onthe basis of the provisions of the old Code pénal, now laid down in Articles 122-5 to122-7 of the new Code pénal. The defence is also recognized unanimously by legalwriters as a ground of justification for civil liability, 2 provided that certainconditions regarding the nature of the aggression and of the defence, as formulatedin the aforementioned legal provisions and in case law, are complied with. As far asthe aggression is concerned, it has to be actual or at least imminent; a simple threator a simple risk of aggression does not justify a premature defence. The imminenceof the aggression is measured in function of the reality of the danger. This leadssometimes to a delicate a posteriori evaluation. In this regard courts have developeda distinction between “likely” and “supposed” aggression (aggressionvraisemblable/putative), of which only the first one justifies the defence. 3 Theaggression must also be unjust or illicit: accordingly, an “aggression” imposed bylaw – for instance, one falling within the scope of Article 73 of the Code deprocédure pénale 4 – does not justify a counterattack. 5 To defend other personsagainst an attack is assimilated to self-defence, and it is now accepted, after somehesitation, that légitime défense may also be relied on in case of an attack against1 See J. Limpens, R. Kruithof & A. Meinertzhagen-Limpens, Liability for One’s Own Act, in A.Tunc (ed.), International Encyclopedia of Comparative Law, Vol. XI, Chapter 2 (Tübingen: Mohr,1979) at para. 167; Von Bar II at 517, para. 593.2 See H., L. and J. Mazeaud and A. Tunc, Traité théorique et pratique de la responsabilité civile,Vol. I, 6th ed. (Paris: Montchrestien: 1965) at 552-553, para. 489; Viney and Jourdain, Conditions at503, para. 563; Jourdain, Fasc. 121-2 at 7, para. 35.3 See, with further references, Jourdain, ibid. at para. 37.4 Supra, 3.F.26.5 Cass. crim., 1 October 1979, Gaz.Pal. 1980.I.306.352/12 Ius Commune Casebooks – Tort Law

WRONGFULNESS [3.2]one’s goods. 6 For the self-defence to be justified, it must be (i) necessary, becauseonly then is it justified to derogate from the general prohibition against taking thelaw into one’s own hands (nul ne peut se faire justice soi-même), as well as (ii)measured, i.e. proportionate to the attack, which means that an excessivecounterattack will not be justified. 7b) Under German law Notwehr is explicitly defined as a general defence in §227 BGB: “(1) An act done in self-defence is not unlawful. (2) Self-defence is anydefensive action necessary to repel an immediate and unlawful attack upon oneselfor another.” 8 It is also regarded as a defence in respect of criminal liability in § 32 ofthe Strafgesetzbuch (StGB, Criminal Code). It follows from the definition of selfdefencein § 227 BGB that the attack must come from a person (not from an animalor a thing) since only persons can violate the law and therefore commit an unlawfulattack. However, Notstand or necessity 9 is mentioned in § 228 BGB as a separateground of justification against an attack by animals or other threat or injury by anyobject. 10The object of the attack can be any good or interest protected by law; forinstance, it is accepted nowadays that smoking on a train constitutes an attack on thehealth of the other passengers where it occurs in spite of a smoking ban. 11 It followsfrom § 227 BGB that the attack must be immediate and unlawful. As to the formercondition, self-defence can only be a ground of justification when the attack hasalready started; Präventivnotwehr is not accepted and, even where one acts in theerroneous conviction of self-defence (Putativnotwehr), that act will be unlawful. 12 Itis accepted, though, that the attack has started as soon as a concrete danger for thelegally protected good is present; and that one must therefore not wait for it toactually happen. 13 The condition of unlawfulness of the attack can be understood intwo ways, depending on whether one adheres to the Result Theory (Erfolgstheorie)6 See the references in Jourdain, Fasc. 121-2 at 8, para. 39.7 Cass. crim., 21 November 1961, D 1962.Jur.226. Art. 122-5(1) of the new Code pénal providesthat self-defence is no ground for excluding liability if there was a disproportion between the meansused for the defence and the gravity of the attack. A similar proportionality requirement is laid down inArt. 122-5(2) and 122-7 of the Code pénal.8 Translation based on J. Limpens, R. Kruithof & A. Meinertzhagen-Limpens, Liability for One’sOwn Act, in A. Tunc (ed.), International Encyclopedia of Comparative Law, Vol. XI, Chapter 2(Tübingen: Mohr, 1979) at 82, para. 167.9 Infra, 3.2.4.C.10 H. Stoll, “Grounds of Justification as a Defence to Liability – German Law”, in In MemoriamJean Limpens (Antwerpen: Kluwer, 1987) 207 at 208; Staudinger-Werner, § 227 at 669, para. 5.11 Ibid. at 668, para. 3.12 RG, 21 March 1914, RGZ, 84, 306. However, if the act is committed under an excusablemistake, there is no culpability and therefore no civil liability, even if the act was objectively unlawful:RG, 12 April 1924, JW 1924, 1968.13 Münchener-von Feldmann, § 227 at 1367, para. 4; Staudinger-Werner, § 227 at 669-670, para.8-9.Ius Commune Casebooks – Tort Law 352/13

LIABILITY FOR ONE’S OWN CONDUCTor the Conduct Theory (Handlungstheorie). 14 Under the former theory, the attackwill be unlawful if the result caused by it constitutes a violation of a right. In otherwords, the result is decisive not the conduct of the person carrying out the attack, sothat Notwehr may be admitted where that person does not violate a duty of care.Contrariwise, under the Conduct Theory, the behaviour of the attacking party –which under the Result Theory comes into play only for the assessment of thatparty’s culpability – is also relevant to determine the unlawfulness of the act. 15It follows from § 227(2) BGB that self-defence can be regarded as a ground ofjustification only where it is necessary to repel the attack. The standard here is theobjective need for the defence; the opinion of the person defending himself is not acriterion. 16 Such objective need is determined in function of the fierceness of theattack and of the means of defence used, as it is for the attacked person to choose,amongst the possible means of defence, that one which is least harmful, or leastrisky, for the aggressor; 17 provided, however, that it allows the attack to be repelledwithout doubt and in a decisive manner. 18 However, unlike the defence of Notstand,which is available only when the damage inflicted on the object is proportionate tothe threatened danger 19 Notwehr is not subjected to a balancing of the interestthreatened by the attack against the interest violated in the act of self-defence. 20 AsH. Stoll observes, “the legal idea behind this less restrictive availability of selfdefenceis that right need not yield to wrong… even if the necessary self-defencemay inflict considerable damage on the aggressor.” 21Since acting in self-defence is lawful pursuant to § 227(1) BGB, it cannot giverise to an obligation to pay damages under § 823ff. BGB. This would only be thecase if the attacked person would exceed the boundaries of permitted self-defence(Notwehrexzeβ). 22c) Also in English law self-defence or private defence constitutes “a form ofjustifiable action in the interest of the defendant… which implies some kind ofattack on him, usually by the plaintiff who is in the wrong himself.” 23 The principle14 On the distinction between the two theories, see supra, 3.2.1.15 See Münchener-von Feldmann, § 227 at 1368, para. 5 where the Conduct Theory is rejected.Staudinger-Werner, § 227 at 671, para. 13, notes that the culpability of the attacking person is notrequired: an attack against which Notwehr can be invoked, can also emanate from children or mentallydisabled persons.16 Staudinger-Werner, § 227 at 672, para. 17; Münchener-von Feldmann, § 227 at 1369, para. 6.17 Staudinger-Werner, ibid. at 673, para. 21.18 BGH, 5 October 1990, NJW 1991, 503; Staudinger-Werner, ibid. at 673, para. 21.19 Infra, 3.2.4.C.20 BGH, 23 September 1975, infra, 3.G.31.21 H. Stoll, “Grounds of Justification as a Defence to Liability – German Law”, in In MemoriamJean Limpens (Antwerpen: Kluwer, 1987) 207 at 208.22 Münchener-von Feltmann, § 227 at 1372, para. 9.23 Clerk & Lindsell on Torts at 102, para. 3-63.352/14 Ius Commune Casebooks – Tort Law

WRONGFULNESS [3.2]is that a defendant is entitled to act reasonably in defence of himself 24 , his propertyor those whom he is bound to protect. 25 The reasonableness requirement implies thatthe force used should not be greater than needed to repel the attack: thus, in theCourt of Appeal’s judgment in Lane v. Holloway, reproduced below, the defendantwas held liable for a savage blow out of all proportion to the provocation. The mostcommon situation for the invocation by the defendant of self-defence is where theplaintiff claims for a deliberate trespass to his person, but there may be otheroccasions as well. 26 Self-defence will not avail one who, in seeking to defendhimself against an attack, strikes an innocent bystander, except if the act in selfdefencewas itself reasonable. 27Cass. civ. 2e, 22 April 1992 28Baumberger v. Wadoux3.F.29.LEGITIMATE SELF-DEFENCEThree men in the nightLegitimate self-defence will lead to the dismissal of an action for damages on thepart of the one who has rendered the self -defence necessary.Facts: A couple of young fiancés were in a car at an isolated location around three o’clock in themorning when another car approached and parked itself with its headlights shining on the first car.Three young men, visibly drunk, came out of the car and walked towards the fiancés. Seeing themapproach, the fiancée took an alarm gun, and warned them not to come closer. One of them did notobey. The young woman fired the gun in his direction and injured his eye. Although she was found notguilty in criminal proceedings, the plaintiff sought to obtain damages from her as keeper of the weapon(Art. 1384(1) C.civ.).Held: The court of first instance held the woman liable for one-third of the damage; the court of appealsfor one-fourth. The Cour de cassation quashed the latter judgment.24 Also in case of unlawful arrest: “If a person is purporting to arrest another without lawfulwarrant the person arrested may use force to avoid being arrested, but he must not use more force thannecessary”: R. v. Wilson [1955] 1 WLR 493 (CA) at 494, per Lord Goddard CJ; Kenlin v. Gardiner[1967] 2 QB 510.25 Rogers at 747-748.26 J.A. Jolowicz “Grounds of Justification – English Law”, in In Memoriam Jean Limpens(Antwerpen: Kluwer, 1987) 223 at 227 gives the example of defamation, where a “qualified privilege”protects the maker of a defamatory statement if the statement was published by way of reasonableresponse to a verbal attack.27 Clerk & Lindsell on Torts at 103, para. 3-63; compare, however, Markesinis and Deakin at 395-396.28 D 1992.Jur..353, with annotation by J.-F. Burgelin, (1992) 92 RTDciv. 768, with annotation byP. Jourdain.Ius Commune Casebooks – Tort Law 352/15

LIABILITY FOR ONE’S OWN CONDUCTJudgment: “Legitimate self-defence cannot result in a claim for damages on the part of theparty who rendered such self-defence necessary;To rule that [the defendant’s] liability was engaged, the court of appeal points out that shewas in a position to use, manage and control and, consequently, was the keeper of theweapon, which caused damage to [the plaintiff]. By adjudicating in this manner while thecriminal courts had decided that [the defendant] had used the weapon in legitimate selfdefence,the court of appeal erred in law.”Notes(1) Until the annotated judgment French courts had not extended défenselégitime to a situation of liability not based on conduct, as laid down in Article1384(1) C.civ. In the annotated case, the Cour de cassation clearly holds that, in asituation where both Art. 1382 and 1384(1) C.civ. are invoked, no action fordamages is available to a person who has induced someone to act in self-defence. Aspointed out by a commentator, 29 the annotated judgment finds a precedent in thejudgment of 10 June 1970 30 relating to the defence of statutory authority (permissionde la loi).(2) Though the outcome is welcomed by all authors, the reasoning of the Courthas not been universally applauded: how, indeed, can the Cour de cassation extend aground of justification which is proper to fault-based liability under Art. 1382-3C.civ. to cover also liability not based on wrongful conduct under Art. 1384(1)C.civ.? According to J.-F. Burgelin, one arrives at this result by giving the notion ofdéfense légitime its full meaning as a ground of justification. In his view, an act ofself-defence is the consequence of a failure of the State to assure the protection of acitizen who is therefore obliged to protect himself. In acting so, the citizen does notcommit a fault, but exercises a personal right, or complies even with a social duty.Where self-defence justifies the violent act, the latter objectively loses itsreprehensible character. 31P. Jourdain remains critical. In his view, the annotated judgment turns défenselégitime, traditionally understood as a defence removing the illicitness of an act, intoa more general and autonomous cause of exemption from liability, 32 in that it makesdéfense légitime comparable to force majeure. P. Jourdain questions thisassimilation, because the exonerating effect of force majeure is not only due to theabsence of fault, but also because it constitutes an extraneous cause (causeétrangère), which, in the area of liability for things, breaks the link of causationbetween the damage and the thing (le fait de la chose). 33 That is not so, however, for29 Burgelin, ibid. at 354; Jourdain, ibid. at 1992, 769.30 Supra, 3.F.26.31 J.-F. Burgelin, D 1992.Jur.352 at 353-354.32 Jourdain, Fasc. 121-2 at 9, para. 43.33 See infra, Chapter IV, 4.1.3., Introductory Note under g).352/16 Ius Commune Casebooks – Tort Law

WRONGFULNESS [3.2]défense légitime, which relates only to the condition of fault and to none of the otherconditions of liability. In P. Jourdain’s view, the annotated judgment is essentiallybased on reasons of morality and justice as it would seem unjust to order a person topay damages to a victim who has provoked the harm. But that is unsatisfactory inthe case of Art. 1384 (1) C.civ., where the keeper (gardien) is held liable withoutfault. A more satisfactory explanation would therefore be to regard the wrongfulprovocation of the victim (faute de provocation de la victime) as an inexcusable andpossibly even intentional fault of the victim vis-à-vis the attacked person which,because of its gravity, excludes any right to reparation. 34Court of Appeal 35Lane v. Holloway3.E.30.DISPROPORTIONATE ACTION; NO SELF-DEFENCEA savage blowA person who strikes another person a savage blow out of all proportion to theoccasion, is liable in damages. Neither the maxim ex turpi causa non oritur actio northe maxim volenti non fit injuria afford a defence.Facts: The plaintiff, a retired gardener aged 64, and the defendant, a young man of 23, wereneighbours. Relations between them were strained because of the defendant’s noisy café. One night theplaintiff came back from the pub and was talking to a neighbour in the courtyard. The defendant’s wifecalled out to them “You bloody lot” and the plaintiff replied “Shut up, you monkey-faced tart”. Thedefendant came to the window and said “What did you say to my wife?”. As the plaintiff replied “Iwant to see you on your own”, the defendant came down into the yard and approached the plaintiffmenacingly. The plaintiff punched him on the shoulder, whereupon the defendant hit the plaintiff asevere blow on the eye. The plaintiff was in hospital for a month and had nineteen stitches round hiseye.Held: The court of first instance held the defendant liable but took into consideration the plaintiff’s ownbad behaviour by way of mitigation of damages. The Court of Appeal allowed the appeal and held thedefendant liable without deduction from damages for the plaintiff’s provocation.Judgment: LORD DENNING MR: “The first question is: was there an assault by the defendantfor which damages are recoverable in a civil court? I am quite clearly of the opinion thatthere was. It has been argued before us that no action lies because this was an unlawful fight:that both of them were concerned in illegality; and that, therefore, there can be no cause ofaction in respect of it. Ex turpi causa non oritur actio. To that I entirely demur. Even if thefight started by being unlawful, I think that one of them can sue the other for damages forsubsequent injury if it was inflicted by a weapon or savage blow out of all proportion to the34 P. Jourdain, comment at (1992) 92 RTD civ., 1992 768 at 770-771.35 [1968] 1 QB 379, [1967] 3 WLR 1003, [1967] 3 All ER 129.Ius Commune Casebooks – Tort Law 352/17

LIABILITY FOR ONE’S OWN CONDUCToccasion. I agree that in an ordinary fight with fists there is no cause of action to either ofthem for any injury suffered. The reason is that each of the participants in a fight voluntarilytakes on himself the risk of incidental injuries to himself. Volenti non fit injuria. But he doesnot take on himself the risk of a savage blow out of all proportion to the occasion. The manwho strikes a blow of such severity is liable in damages, unless he can prove accident or selfdefence.In this case the judge found that‘with a young man of twenty-three and a man of sixty-four, whom he knows to besomewhat infirm, the young man cannot plead a challenge seriously; nor is he entitled to goand strike him because of an insult hurled at his wife.’I quite agree. The defendant in anger went much too far. He gave a blow out ofproportion to the occasion for which he must answer in damages. Thus far I entirely agreewith the judge. Then the question arises as to the amount of damages…It is said that the judge ought not to have reduced the damages. The judge had casesbefore him, both in this country and in New Zealand and Canada, where it was held thatprovocation could be used to reduce the damages. Most of these cases were considered bythe High Court of Australia in 1962 in Fontin v. Katapodis [1962] 108 CLR 177, where theplaintiff struck the defendant with a weapon, a wooden T-square. It broke on his shoulder.There was not much trouble from that. But then the defendant picked up a sharp piece ofglass with which he was working and threw it at the plaintiff causing him severe injury. Thejudge reduced the damages from AUD 2,850 to AUD 2,000 by reason of the provocation.But the High Court of Australia, including Sir Owen Dixon, C.J., held that provocation couldbe used to wipe out the element of exemplary or aggravated damages, but could not be usedto reduce the actual figure of pecuniary compensation. So they increased the damages to thefull AUD 2,850.I think that the Australian High Court should be our guide. The defendant has done acivil wrong and should pay compensation for the physical damage done by it. Provocation bythe plaintiff can properly be used to take away any element of aggravation; but not to reducethe real damages.”Notes(1) The annotated judgment confirms the principle that, in order for an act to bejustified by self-defence, the defendant must act reasonably and use no greater forcethan needed to repel the attack. In the present case, it was clear that the defendanthad acted “out of proportion to the occasion for which he must answer in damages”.Indeed, for a young man of twenty-three to give a savage blow to a man of sixtyfourwhom he knows to be somewhat infirm, is not in proportion with the insultwhich the older man hurled at the younger man’s wife.(2) The annotated judgment does not make application of contributorynegligence to reduce the plaintiff’s right to compensation (nor does it apply thedefence of volenti non fit injuria or the defence of ex turpi causa non oritur actio 36 ).In a later case, Murphy v. Culhane, 37 Lord Denning suggested, however, thatcontributory negligence would be available in a claim of trespass to the person or36 On those defences see infra, Chapter VII, 7.2.1 and 7.3.3.37 Murphy v. Culhane [1977] QB 94.352/18 Ius Commune Casebooks – Tort Law

WRONGFULNESS [3.2]other tort concerned with intentional harm to the person. 38 This has been confirmedin Barnes v. Nayer, 39 though it was not applied to the facts of that case. In theannotated judgment, the disproportion between the conduct of the plaintiff and thatof the defendant was such that it prevented any reduction of real damages (asopposed to exemplary or aggravated damages 40 ).BGH, 23 September 1975 413.G.31.SELF-DEFENCE WITH FIREARMShot after a spring partyAn unlawfully attacked person may, as a matter of principle, choose the means ofdefence available to him which can immediately and decisively fend off the dangerwith certainty; he does not need to choose a less dangerous means of defence if it isdoubtful whether it would be sufficient to fend off the attack.Facts: After visiting a party, P, the husband of the first plaintiff and father of the second and thirdplaintiff, was killed by a gun shot from the defendant. According to the plaintiffs, the defendant hadspit on a friend of P and had left the party with two companions; when P ran after them together withtwo friends, the defendant took his gun and shot P. The defendant invoked self-defence, arguing that Pand his two friends had been repeatedly convicted for violent delicts, had taken him on without reasonand beaten him to the ground and that, only when he lay on the ground, he had given a warning shot.Held: The court of appeal held the defendant liable, rejecting his plea of self-defence. The BGHquashed the decision.Judgment: “I. The court of appeal held that the defendant has to pay the plaintiffsmaintenance costs… for having caused P’s death, acknowledging therewith that the fatal shotwas fired by the defendant. Although the court accepted that the shot was not pointed at P,but fired as a warning shot, it did not accept the shooting to be justified because of selfdefence…II. With these considerations, the judgment cannot stand review...The court of appeal is correct in stating that the defendant can rely on the ground ofjustification of § 227 BGB only when pulling and using the gun are required for his defenceagainst an imminent and unlawful attack and this although the defendant could recognize thefatal risk attached thereto. One can also agree with the court of appeal that the use of a gun –38 See infra, Chapter VII, 7.E.12., Note (6). See further Clerk & Lindsell on Torts at 73, para. 3-17; Markesinis and Deakin at 396.39 Barnes v. Nayer, The Times, 19 December 1986. In that case, the defendant had alleged that heand his family were subjected to constant abuse by their neighbours, and that on one occasion, afterthreats to his son, he had killed the deceased with a machete.40 On exemplary and aggravated damages, see infra, Chapter VIII, 8.E.1.-2. and notes thereafter.41 NJW 1976, 41.Ius Commune Casebooks – Tort Law 352/19

LIABILITY FOR ONE’S OWN CONDUCTeven for a warning shot – is justified only in seriously dangerous situations and as anultimate means… and that a person defending himself against violence which he has notprovoked… is obliged to respect the attacking person’s life and health as much as possible.On the other hand, the use of a gun is not only allowed when the life of the attacked isthreatened, for example when the aggressor uses a similarly dangerous weapon; indeed, apartfrom an abuse of the right of self-defence by totally excessive behaviour, § 227 BGB doesnot require proportionality to exist between the danger threatening the defendant and thedamage caused by him in his defence [references omitted]. Accordingly, an unlawfullyattacked person – at least when he has not provoked the attack – can choose, amongst themeans of defence within reach, that one of which he or she can expect with certainty that itwill eliminate the danger immediately and definitively; he or she must therefore not resort toa less dangerous but more doubtful means of defence. That does not only apply in criminallaw under § 53 StGB [references omitted] but also in civil law under § 227 BGB.The court of appeal cannot be followed insofar as it implies, in stating that thedefendant has ‘reached for his weapon as a first means of defence’ and has not called forhelp, that the use of a weapon must always be preceded by an attempt to avoid a life threatby asking a third person for help. That point of view is totally inconsistent with lifeexperience indicating that – especially in such a place and by night – third persons who donot know the reason of the dispute will not interfere…”Notes(1) The annotated judgment confirms a number of principles governing theavailability of Notwehr under § 227 BGB, in a situation where a firearm was used byway of self-defence. It acknowledges in the first place that the defence of Notwehrcan only be relied on when the use of a gun was necessary as a means of defenceagainst an unlawful attack, and that such use – even where it occurs as a warningsignal – will be justified only as a last resort in seriously dangerous situations. As C.Roxin observed in an annotation under a previous BGH judgment, 42 one is alwaysunder a duty to respect someone else’s life and health as much as possible. In theannotated judgment, the BGH emphasizes, however, that the use of a firearm is notonly justified when the life of the attacked person is in danger – for instance becausethe aggressor threatens him with a similarly dangerous weapon – but also when,among other means of defence, the firearm is the one which allows him withcertainty to fend off the danger immediately and decisively. Earlier BGH case lawhad already applied this rule in a situation of criminal liability, that is under § 53 ofthe Strafgesetzbuch (StGB, Criminal Code), 43 but the present judgment applies itnow also in a situation referred to in § 227 BGB. The fact that the attacked personhad no license to carry a firearm, is of no importance to decide whether the act ofself-defence was lawful or not. 44para. 8.42 C. Roxin, Comment on BGH, 14 June 1972, NJW, 1972, 1821.43 BGH, 14 June 1972, ibid.44 BGH, 5 October 1990, NJW 1991, 503. See already Münchener-von Feldmann, § 227 at 1372,352/20 Ius Commune Casebooks – Tort Law

WRONGFULNESS [3.2](2) In two later judgments, the BGH added some qualifications to the aboveruling. 45 In those judgments, the Court specified that, where various operationalmeans of defence or various ways how to use a means of defence are available to theattacked person, the latter should, if time permits, assess the danger to which he isexposed, and choose the means which is least dangerous for the aggressor; alwaysprovided that such a less dangerous defence is able, with certainty, to fend off thedanger immediately and definitively. That, of course, depends very much on all thecircumstances of the case. 46(3) The annotated judgment underlines that an abuse of the defence of Notwehris not permitted where the act of self-defence amounts to totally excessivebehaviour. Whether there is such an abuse must be assessed from a societal point ofview (Verkehrsanschauung). An abuse may be present where the assaulted legalinterest is manifestly out of proportion (eine krasse Miβverhältnis) with theendangerment of the aggressor or the violation of his interests. 47 For instance, onemay remove by force a drunk customer who verbally threatens other customers, butthere is no justification for using a firearm, all the more so because that may alsoendanger other customers. 48(4) In the annotated judgment the BGH did not deal with the question whetherthe defendant might have provoked the attack on him, by the agressor P and his twofriends, through his own allegedly wrong behaviour towards P’s friend. In an earlierjudgment, the BGH had made clear that, if the victim of aggression had firstprovoked the aggressor, without wanting the act of aggression itself, he shouldexercise restraint in choosing the means of defence and should therefore use anyother less dangerous manner to fend off the danger threatening him, in the first placeby trying to avoid the attack, if only temporarily, with a view of finding a lessdangerous form of defence. 4945 BGH, 5 October 1990, ibid.46 See also Staudinger-Werner, § 227 at 673, para. 21.47 OLG Hamm, 1 August 1972, NJW 1972, 1826. See also Münchener-von Feldmann, § 227 at1369-1370, para. 6.48 BGH, 27 June 1978, NJW 1978, 2028. See also Staudinger-Werner, § 227 at 673, para. 20.49 BGH, 14 June 1972, NJW 1972, 1821, with annotation by C. Roxin. See also Münchener-vonFeldmann, § 227 at 1370, para. 6.Ius Commune Casebooks – Tort Law 352/21