Introduction to German Tort Law

From:
Cees van Dam: European Tort Law, Chapter 4 (Germany)
2nd edn. (Oxford: OUP, 2013)

*-*-*

401 Introduction
401-1 History
401-2 Civil Code (Bürgerliches Gesetzbuch)
401-3 Judiciary
401-4 Doctrine
402 Fault liability: the BGB provisions
402-1 Three general provisions
402-2 Requirements for fault liability
402-3 § 823 I: infringement of a right
402-4 § 826 BGB: intentional infliction of damage contra bonos mores
402-5 Gaps in the BGB and the need for judicial intervention
403 Fault liability: judge-made safety duties (Verkehrspflichten)
403-1 Origin, character, and place in the legal system
403-2 Application
404 Fault liability: judge-made rights
404-1 Right to business (Recht am Gewerbebetrieb)
404-2 General personality right (allgemeines Persönlichkeitsrecht)
405 Rules of stricter liability
405-1 General observations
405-2 Liability for things
405-3 Liability for persons

*-*-*

401 Introduction

401-1 History

The German Civil Code (Bürgerliches Gesetzbuch, BGB), entered into force on 1 January 1900.
The Code was intended to unify the patchy legal landscape of the young German empire estab-
lished in 1871 after the merger of the North German Federation and the South German States.
The BGB is considered to be the political masterpiece of the statesman Otto von Bismarck
(1815–1898) to transform a loose collection of small States into the strongest industrialized na-
tion in continental Europe.
 The BGB was intended to be one of the symbols of new German unity, however, the codifi-
cation was also an economic necessity since the second half of the nineteenth century had seen
an expanding economy increasingly operating on a supra-regional level.1
After the Second World War, the western side of Germany was transformed into the Federal
Republic of Germany and retained the BGB. The German Democratic Republic (GDR) was es-
tablished on the eastern side, and in 1976 it replaced the BGB with its own Civil Code, the Zi-
vilgesetzbuch (ZGB).2 In 1989, the GDR said farewell to Lenin and the following year the two
German nations were re-united, the eastern side exchanging the ZGB for the ‘good old’ BGB.
Germany is a federal State composed of states (Länder), including the city-states of Berlin,
Hamburg, and Bremen. Compared to the powers of the federal government, the powers of the
Länder are limited: Germany is a federal State (Bundesstaat) and not a federation of states
(Staatenbund). Although the Länder have autonomy in a number of areas, civil law is the com-
petence of the federal government.
It took 26 years to draft the BGB—a monument of nineteenth-century legal scholarship3—
with the main work carried out by a commission of judges, officials, and professors. It is unsur-
prising that the draft was criticized as being too abstract, pedantic, and doctrinaire. According to
Zimmermann, the BGB ‘is marked by a degree of conceptual abstraction that has caused, and
continues to cause, both admiration and consternation. . . . The internal logic . . . is usually quite
magnificent, but it does not promote the code’s comprehensibility.’4
The abstract level of the BGB’s provisions has contributed to its flexibility and lasting prac-
ticability as it has given the courts sufficient space to develop the law as required from both a
social and economic point of view. In cases in which provisions lacked the flexibility to deal
with social and economic needs effectively, the highest courts of appeal, the Bundesgerichtshof
(Federal Supreme Court, preceded by the Reichsgericht) (Section 401-3), did not hesitate to cre-
ate additional judicial rules, inter alia, in the area of tort law (Section 403).

401-2 Civil Code (Bürgerliches Gesetzbuch)

As with most other German federal Acts, the BGB consists of paragraphs. These are indicated
by the § symbol, and sections are usually indicated by a Roman numeral, for example § 823 I.5
The exception on a federal level is the Constitution or Basic Law (Grundgesetz, GG) which is
subdivided into articles.
The BGB comprises five books, and most provisions relevant to establishing liability and
damages can be found in the second book on the law of obligations (Recht der Schuldverhält-
nisse: § 241–853).

1
See on the history of the BGB: Reinhard Zimmermann, ‘An Introduction to German Legal Culture’, in
Werner F. Ebke and Matthew W. Finkin (eds.), Introduction to German Law (The
Hague/London/Munich: Kluwer Law International, 1996). Important English language works on German
law are Basil S. Markesinis and Hannes Unberath, The German Law of Torts: A Comparative Treatise,
4th edn. (Oxford: Oxford University Press, 2002) and Helmut Koziol, Basic Questions of Tort Law from
a Germanic Perspective (Vienna: Jan Sramek Verlag, 2012).
2
Instead of the 2,358 paragraphs of the BGB, the ZGB contained only 480. See Klaus Westen (ed.), Das
neue Zivilrecht der DDR nach dem Zivilgesetzbuch von 1975 (Baden-Baden: Nomos, 1977).
3
Münchener Kommentar-Wagner (2009), Vor § 823, N 7–15.
4
Reinhard Zimmermann, ‘An Introduction to German Legal Culture’, in Werner F. Ebke and Matthew
W. Finkin (eds.), Introduction to German Law (Dordrecht: Kluwer Law International, 1996), 9.
5
See for an English translation of the BGB provisions, Markesinis and Unberath (2002), 14–18.
 Part of the rules relating to the law of damages is codified at the beginning of the second
book where the most general rules on obligations can be found (§ 241–304); these rules apply to
contractual and non-contractual liability alike. The most important general rules on damages are
§ 249–253. In this part of the second book, definitions of fault and negligence (§ 276) and con-
tributory negligence (§ 251) also find a place.
The rules regarding torts (unerlaubte Handlungen) can be found in § 823 ff. These include
general and specific liability rules, liability rules for minors and the mentally incapacitated (§
827–829), and for officials (§ 839–841), as well as special rules for the compensation of damage
which only apply in tort law cases (§ 842–851). In addition, the BGB holds one rule of strict
liability in § 833 (strict liability for animals) and a number of liability rules for rebuttable negli-
gence (§ 831–838). Since 1900, the legislator has issued a considerable number of rules of strict
liability, but these have all been embodied in separate Acts and not in the BGB, in order to keep
the cherished Code free from too many systematic disturbances (Section 405).
These legislative amendments as well as the judicial rules added by the highest German
courts (Section 401-1 in fine) have kept German tort law up to date with social and economic
developments during the course of its existence. However, the patchwork caused by these
changes, as well as the abundant case law of the Bundesgerichtshof, have also disturbed the tort
law system. More than once, this disturbance has tempted the minds of the legislator and aca-
demics to try to restore systematic clarity. A number of major inquiries into the possibilities of
comprehensive reform have been carried out, particularly reform of the law of obligations. The
first was published in 1940 (rather unfortunately timed), the second in 1967, and the third in
1981.6 Despite the high level of these reports, most of the proposals have been spirited away into
the filing cabinets of the Federal Ministry of Justice (Bundesjustizministerium).
A partial reform of the law of obligations, particularly in the areas of limitation and breach of
contract, was enacted in 2001—the so-called Schuldrechtsreform.7 In the same year, a number
of new provisions in the law of damages were introduced—known as the Schadenser-
satzrechtsreform.
A reform of the BGB system as such could be welcomed on systematic grounds but there is
no urgent factual need.8 A judge can find reasonable answers to the vast majority of issues even
though the way in which he has to operate is not always elegant or transparent. German lawyers
are familiar with their somewhat complicated legal system; many of them cherish the peculiari-
ties of its application and prefer specific and precise rules over general rules, and they are not
afraid to use complex reasoning. Some even seem to feel uneasy and dissatisfied with giving
simple answers to legal questions. To a foreign lawyer this may appear confusing, particularly
since authors are often inclined to design diverse and rather complicated reasons for reaching
the same answer.

401-3 Judiciary

Until the end of the Second World War, the Reichsgericht (RG) was Germany’s highest civil
and criminal court. Its successor in the Federal Republic of Germany, the Federal Supreme
Court (Bundesgerichtshof, BGH), was established in 1950. Both courts have played an im-

6
See the overview in Münchener Kommentar-Wagner (2009), Vor § 823, N 80–83.
7
See for an overview Jörg Fedtke, ‘Germany’, ETL 2001, 229–252.
8
Münchener Kommentar-Wagner (2009), Vor § 823, N 83.
portant role in the development of civil law in general, and tort law in particular (Sections 403–
404).
The BGH is seated in Karlsruhe, in the former Palace of the Hereditary Grand Duke Frie-
drich II. The court consists of 12 Senates each having its own area of competence. Disputes be-
tween the Senates are decided by the großer Senat (Great Senate).9
The BGH’s position as the highest appellate court in civil and criminal cases means that it
has to guarantee justice in individual cases and to ensure the uniform application and develop-
ment of the law. The BGH reviews decisions of the regional courts of appeal (Oberland-
esgerichte) and certain divisions of the lower regional courts (Landgerichte). The regional
courts of appeal hear appeals from the first instance courts, the Amtsgerichte (local courts), and
some sections of the Landgerichte. The Landgerichte are first instance courts for more im-
portant cases as well as courts of appeal for certain cases from the Amtsgerichte.10
The decisions of the BGH usually contain a comprehensive discussion of the legal problems
raised by the facts of the case and, in addition, case law and academic literature are thoroughly
considered. ‘A German decision, at the regional appellate or Federal Supreme Court level, ad-
dresses itself as much to the scholarly legal community as to the parties of the individual case.’11
In this sense many decisions of the BGH contain small academic papers relating to the state of
affairs in the area of the law at issue. The BGH refers not only to authors who are in agreement
with its line of reasoning but also to those who are of a different opinion. Therefore, those in
agreement and the ‘wanderers’ both have an equal chance of being mentioned in the case law.
For this reason, academics play an equally important role in developing civil law as do the
courts. However, decisions of the BGH may sometimes be easier to read and understand than
the books and articles of legal writers. The BGH decisions are much more informative than
those of the French Cour de cassation but they are not as personal as the opinions of English
Supreme Court judges. German decisions are written in an objective style and dissenting opin-
ions are not allowed, except in decisions of the Federal Constitutional Court (Bundesverfas-
sungsgericht).12
The German tendency readily to litigate has produced a great array of extensive and well-
reasoned court decisions. In published decisions, the parties appear anonymously; the words
plaintiff (Kläger) and defendant (Beklagte) are used instead of names. The disappointing conse-
quence of this is that most German cases have dull numbers and only in special cases are they
given names such as ‘Jockey’ (Herrenreiter) or ’Chicken plague’ (Hühnerpest).13
The fundamental rights in the German Constitution (known as the Basic Law, Grundgesetz)
have considerably influenced the law in general and also tort law.14 Respect for human dignity
and the right to personal freedom, mentioned in the first two articles of the Basic Law, are inter-
ests which are also protected by tort law. In this respect, the case law of the Federal Constitu-
tional Court is relevant and will be referred to where appropriate. The court was established in
1951 and sits in Karlsruhe. It is the guardian of the Basic Law and is entitled to declare legisla-

9
§ 132 Act on the Organization of the Judiciary (Gerichtsverfassungsgesetz).
10
Markesinis and Unberath (2002), 1–8.
11
Reinhard Zimmermann, ‘An Introduction to German Legal Culture’, in Introduction to German Law
(1996), 22.
12
Reinhard Zimmermann, ‘An Introduction to German Legal Culture’, in Introduction to German Law
(1996), 21–22; Markesinis and Unberath (2002), 8–14.
13
Hein Kötz, Die Begründung höchstrichterlicher Urteile, Preadvies Nederlandse Vereniging voor
Rechtsvergelijking (Deventer: Kluwer, 1982), 12–14.
14
Münchener Kommentar-Wagner (2009), Vor § 823, N 63–66.
tive, executive, and judicial acts as unconstitutional and nullify them, either for formal viola-
tions (eg of prescribed procedures) or for material conflicts (eg due to the encroachment of hu-
man rights).

401-4 Doctrine

The extensive German doctrine on the law of torts (unerlaubte Handlungen) is also a rich
source of information and inspiration for foreign lawyers. It produces an abundant number of
commentaries, handbooks, monographs, and theses and in this respect the German doctrine is
unique. The commentaries (Kommentare), especially, are masterpieces of detailed analyses of
legal provisions. There are several major commentaries, such as the Staudinger, the Münchener
Kommentar, and the Soergel,15 as well as a number of more concise ones, such as the classical
Palandt and the Jauernig.16
In addition to these commentaries on the German Civil Code, there are a number of tort law
textbooks, for instance the classic Schuldrecht by Karl Larenz, continued by Claus-Wilhelm
Canaris,17 and the also classic but less traditional Schuldrecht by Josef Esser, continued by Eike
Schmidt and Hans-Leo Weyers.18 The most elegant and accessible German textbook in the area
of tort law is Deliktsrecht by Hein Kötz and Gerhard Wagner.
A downside of this major force of legal writing is that the practical interest of the discussions
is not always clear. In the area of tort law one may, for instance, think of controversies concern-
ing the relationship between the requirements of unlawfulness (Rechtswidrigkeit) and fault
(Verschulden) (Section 402-2) and wrangles relating to the place of the safety duties
(Verkehrspflichten) in the legal system (Section 403-1). More generally, there is a strong ten-
dency within the German doctrine to try frantically to reconcile the pragmatic approach of the
BGH with the BGB system which, despite its flaws, is still considered the cornerstone of Ger-
man civil law. Kötz refers of the spilling of ink by his fellow countrymen, which in his view is
due to the strongly developed German passion for reflecting on legal controversies and to the
fact that these types of question undoubtedly possess a high theoretical attraction.19
The flipside of this is that almost all problems of tort law are conveniently mapped by au-
thors who cannot resist systematizing the law and dividing detailed legal questions into dozens

15
Münchener Kommentar zum Bürgerlichen Gesetzbuch, 5th edn. (Munich, 2009 ff); Julius von
Staudinger, Kommentar zum Bürgerlichen Gesetzbuch mit Einführungsgesetz und Nebengesetzen, (Ber-
lin, 2009 ff); Soergel, Hans Th. (ed.), Bürgerliches Gesetzbuch, mit Einführungsgesetz und Nebengeset-
zen, 13th edn. (Stuttgart: Kohlhammer, 2005 ff).
16
Otto Palandt, Bürgerliches Gesetzbuch, 71st edn. (Munich: Beck, 2012); Othmar Jauernig, Bürgerliches
Gesetzbuch, 14th edn. (Munich: Beck, 2011).
17
Karl Larenz, Lehrbuch des Schuldrechts. Band 1 Allgemeiner Teil, 14th edn. (Munich: Beck, 1987);
Karl Larenz, Lehrbuch des Schuldrechts. Band 2 Besonderer Teil, 13th edn. 2nd vol. edited by Claus-
Wilhelm Canaris (Munich: Beck, 1994).
18
Josef Esser, Schuldrecht. Ein Lehrbuch (Heidelberg: Mueller). Particularly relevant as regards tort law
and damages are Band 1, Teilband 2: Durchführungshindernisse und Vertragshaftung. Schadensausgleich
und Mehrseitigkeit beim Schuldverhältnis, 8th edn. by Eike Schmidt (2000) and Band 2, Teilband 2: Ge-
setzliche Schuldverhältnisse, 8th edn. by Hans-Leo Weyers (2000).
19
Hein Kötz and Gerhard Wagner, Deliktsrecht, 9th edn. (Neuwied: Luchterhand, 2001), N 99: ‘Wenn
gleichwohl in der deutschen juristischen Literatur zu dieser Frage ganze Ströme von Tinte vergossen
worden sind, so liegt das einmal an dem hierzulande stark ausgebildeten Hang zum Durchleiden
rechtswissenschaftlicher Kontroversen, zum anderen daran, daß das in Rede stehende Problem fraglos
von hohem theoretischem Reiz ist.’
of even more detailed sub-questions, whereas cases are classified in detailed, layered categories
(aufgegliederte Fallgruppen). If a legal question arises anywhere in the world, there is a signifi-
cant probability that a German author has already thought about it, identified the different as-
pects of the problem, and produced an appropriate detailed analysis.

402 Fault liability: the BGB provisions

402-1 Three general provisions

The traditional distinction in German tort law is between fault liability (Verschuldenshaftung)
and strict liability (Gefährdungshaftung). Strict liability means that someone is liable regardless
of whether he acted intentionally or negligently. More precisely, he is liable for the risk (Ge-
fährdung) that occurs. For example, if a daughter drives her father’s car and causes an accident,
the father will be strictly liable for the consequences. Rules of strict liability are discussed in
Section 405.
Fault liability includes liability for intentional as well as negligent conduct. However, apart
from liability based on § 826 BGB (Section 402-4), intentional conduct is not a necessary condi-
tion for liability: in all other cases, negligent conduct will suffice provided the other require-
ments for liability (such as unlawfulness) are met (see Section 402-2).
The first draft of the BGB contained two very general rules for fault liability but this was
much criticized at the time of its presentation in 1888; it was considered that a general rule
would give the courts too much freedom which was not consonant with the need for unity. The
necessity and desire to strengthen the unity of the young German empire (Section 401-1) led to
the conclusion that the BGB had to deviate from the French Civil Code with its sole general rule
for fault liability. It was thought that a general rule would lead to uncertainties and doubts and
particularly to a lack of boundaries.20 This position was possibly also fuelled by political reasons
since the main drafting of the BGB took place in the wake of the Franco-German war (1870–
1871), in an era of growing national self-consciousness. During the preparatory work for the
BGB it was even said that ‘the German legal conscience which alone is relevant has no room for
the notions of the code civil’.21
Additionally, it was also considered impracticable to draft only specific rules as was the po-
sition in English law. Hence, an intermediate approach was chosen by designing three general
rules with a restricted scope of application. However, for several reasons this method did not
appear to be completely satisfactory either (Sections 403–404).22 In fact, German tort law now
mainly operates on the basis of a general fault rule,23 but the text of the old BGB provisions still
gives rise to a number of technical peculiarities and complications.

20
Ernst von Caemmerer, Wandlungen des Deliktrechts (Karlsruhe: Mueller, 1960), 471: the drafters
feared ‘die Unsicherheiten und Zweifel, zu denen eine solche Generalklausel führen könnte. Man fürch-
tete insbesondere die Uferlosigkeit.’ See also Christian Katzenmeier, ‘Zur neueren dogmengeschicht-
lichen Entwicklung der Deliktsrechtstatbestände’, AcP 203 (2003), 80–118.
21
Protokolle der Kommission für die zweite Lesung des Entwurfs des Bürgerlichen Gesetzbuch. II, 603,
cited in von Bar (1998), N 186.
22
Münchener Kommentar-Wagner (2009), Vor § 823 N 15.
23
See Ernst von Caemmerer, Wandlungen des Deliktrechts (Karlsruhe: Mueller, 1960), 526: ‘Sieht man
sich die Fälle an, die als “bloßeVermögensschädigungen” noch offenbleiben, so sind es solche, in denen
auch in den Rechten mit allgemeinem Deliktstatbestand Widerrechtlichkeit oder “faute” verneint oder
festgestellt wird, daß eine “duty” dem Betroffenen gegenüber nicht verletzt ist.’
 The three general rules that are characteristic for the German intermediate approach between
the French system of general rules and the English system of specific rules can be found in §
823 I, § 823 II, and § 826 BGB. Each of these statutory provisions contains five requirements
for liability: (1) the violation of a codified normative rule (Tatbestandswidrigkeit), (2) unlaw-
fulness (Rechtswidrigkeit), (3) intention or negligence (Verschulden), (4) causation (Kausalität),
and (5) damage (Schaden).
The codified normative rule (Tatbestand) restricts the field of application of the general pro-
visions: application of § 823 I requires the infringement of a right, such as the rights to life,
body, health, freedom, and property; § 823 II the violation of a statutory rule (Schutzgesetzver-
stoß); and § 826 intentional unethical conduct, also known as intentional infliction of damage
contra bonos mores. These requirements mean that it is not possible to lodge a claim for dam-
ages on the sole basis of intention or negligence: the violation of a codified normative rule (Tat-
bestandswidrigkeit) also has to be established.
The BGB contains not only the above-mentioned general provisionsbut also three specific
provisions: § 824 concerning financial and economic trustworthiness; § 825 relating to the in-
fringement of sexual integrity; and § 839 covering breach of an official duty. Together with the
three general provisions (Grundtatbestände), these three specific provisions (Einzeltatbestände)
are the core of German fault liability.

402-2 Requirements for fault liability

The first requirement for fault liability is the violation of a codified normative rule (Tat-
bestandswidrigkeit). These rules concern the infringement of another person’s protected right (§
823 I, Section 402-3), the intentional infliction of damage contra bonos mores (§ 826, Section
402-4), or the violation of a statutory rule. This codified normative rule requirement aims to
limit the scope of fault liability.
If a person has fulfilled such a Tatbestand, it means that his conduct is in principle unlawful.
Hence, in principle a person acts unlawfully by infringing another person’s protected right
(§823 I), by violating a statutory rule (§823 II), or by intentionally inflicting damage contra
bonos mores (§ 826). Unlawfulness can be rebutted by invoking a ground of justification
(Rechtfertigungsgrund), for example self-defence (§ 227), necessity (§ 228 and 904), or self-
help (§ 229 and 859).
In addition to the violation of a codified normative rule and unlawfulness (Rechtswidrigkeit),
the third requirement for liability is fault (Verschulden, § 276). This requirement is fulfilled if
the wrongdoer acted intentionally or negligently; conduct is deemed negligent if it is contrary to
the care required by society.24
An example illustrates how this rather sophisticated system works. If someone saws down a
tree that hits a bystander, he infringes the victim’s right to bodily integrity and thus violates the
normative codified rule of § 823 I. This automatically leads to the conclusion that the person
who sawed down the tree acted unlawfully, unless he had a ground of justification. If he cannot
invoke such a ground, the next question is whether he acted intentionally or negligently
(Verschulden).
In these cases of direct infringement, the system is reasonably straightforward. However, the
system is less clear if the infringement has been indirect, for example if a rotten tree falls onto a

24
§ 276 I BGB: ‘Der Schuldner hat, sofern nich ein anderes bestimmt ist, Vorsatz und Fahrlässigkeit zu
vertreten. Fahrlässig handelt, wer die im Verkehr erforderliche Sorgfalt außer acht läßt.’
road and a car collides with the tree.25 The above-mentioned system would lead to the conclu-
sion that the sole fact that the car owner’s right to property is infringed amounts to unlawfulness
unless a ground of justification applies. This is, of course, considered to be an undesirable re-
sult. Consequently, the German courts have developed safety duties in all areas of accident law
(Verkehrspflichten, see Section 403). In the case of an indirect infringement, the breach of such
a safety duty determines unlawfulness. Hence, the applicable rule for unlawfulness differs: in
cases of direct infringement (sawing down a tree), this sole fact will suffice for unlawfulness,
and in cases of indirect infringement (the rotten tree fallen onto the road), the breach of a safety
duty is decisive.
These different methods of establishing unlawfulness also have an impact on the role of neg-
ligence (as one of the elements of Verschulden) and this has given rise to thorough discussion in
the legal literature. In cases of direct infringement, the distinction between unlawfulness and
negligence is not difficult to grasp, but in cases of indirect infringement the difference between
unlawfulness (breach of a safety duty) and negligence (conduct that is contrary to the care re-
quired by society) is not obvious. Nevertheless, the BGH and the majority of authors wish to
maintain this system, which means that Verschulden does not exactly play an independent role
in the case of an indirect infringement of a right. Conversely, a minority of authors advocate a
straightforward system in which unlawfulness is always established on the basis of negligent
conduct, regardless of the character of the infringement.26

402-3 § 823 I: infringement of a right

§ 823 I protects life, physical integrity, health, and personal liberty (the so-called Rechtsgüter)
as well as property and ‘another right’ (the so-called Rechte). The former category concerns
rights that are invariably attached to the person, whereas the latter rights can be transferred. If
someone infringes such a protected right, he has fulfilled the codified normative rule of § 823 I
and, hence, has acted unlawfully (rechtswidrig) provided that there is no ground of justification
for his conduct. If he has also acted negligently, he will be liable for the damage caused, not
only for the physical damage but also for the consequential economic loss. This means that §
823 I applies to all cases of personal damage and property damage and, in fact, serves as a gen-
eral rule of fault liability for cases of death, personal injury, and property loss.
In order to provide victims with proper protection, the courts are inclined to interpret the
rights protecting against death and personal injury in a broad manner.27 An example is the case
of a 31-year-old man with bladder cancer who, prior to an operation with an inherent risk that he
would become infertile, had his sperm frozen by a hospital. After surgery, the man indeed ap-
peared to be infertile. Some time later, the hospital destroyed the man’s sperm without his con-
sent. The BGH awarded damages for non-pecuniary loss of DM 25,000 (€ 12,800) for the in-
fringement of his right to bodily integrity.28 Another example of the courts’ broad interpretation
of rights is that the rights to health and bodily integrity can also be infringed before birth: a

25
Compare the similar distinction made in English law (Section 502-3) between trespass (directly caused
harm) and trespass on the case (indirectly caused harm).
26
Münchener Kommentar-Wagner (2009), § 823 N 5–7; Markesinis and Unberath (2002), 79–83.
27
Kötz-Wagner (2010), N 136.
28
BGH 9 November 1993, NJW 1994, 127 = JZ 1994, 464.
driver who collided with a pregnant woman was found liable for brain damage to the unborn
child.29
Likewise, the infringement of the right to health has been established in a case of HIV con-
tamination although the victim had not yet suffered from any health issues.30 Infringement of the
rights to bodily integrity and health will generally be caused by an accident but can also be
caused by a newspaper article, which destroys someone’s honour and reputation in such a way
that his health is seriously affected.31
Psychological damage, for instance shock after witnessing a serious accident, is also consid-
ered a health injury.32 However, the psychological damage required for this must surpass typical
levels of grief, and distress.
The right to property is also broadly interpreted. Clearly, it applies to cases in which objects
are damaged or destroyed but a property right can also be infringed if the object itself remains
undamaged but can no longer be used in its intended manner: for example, animals fed with tox-
ic food which can no longer be sold33 or a ship that could not sail because of a negligently dam-
aged quay.34 Other examples of the infringement of a property right are the wrongful confisca-
tion of a driving licence, the reprogramming of a computer, and the ransacking of an archive.35
§ 823 I also protects ‘another right’ (sonstiges Recht). In using this concept, the legislator
aimed to bring comparable rights within the ambit of the provision, such as rights regarding in-
tellectual property (patents, trademarks, and copyrights), mortgages, names, portraits, and fami-
ly law-related rights, such as the right to parental care. However, ‘another right’ was not intend-
ed to serve as a general ‘safety net’ provision.36
§ 823 I does not protect personal or obligational rights, such as rights under a contract and
the provision of ‘another right’ does not aim to cover these rights.37 Nor does this provision cov-
er liability for pure economic loss, that is, financial damage which is not caused by death, per-
sonal injury, or property loss. In order to obtain compensation for this type of loss, a victim has
to base his claim on other provisions, particularly § 823 II and § 826.

29
BGH 11 January 1972, BGHZ 58, 48 = NJW 1972, 1126 = JZ 1972, 363, on which see Markesinis and
Unberath (2002), 144–147. See also BGH 20 December 1952, BGHZ 8, 243 = NJW 1953, 416 = JZ
1953, 307, on which see Van Gerven (2000), 80–81 and Markesinis and Unberath (2002), 147–149; Lar-
enz-Canaris (1994), 76 II 1h, 385.
30
BGH 25 April 1991, BGHZ 114, 284 = NJW 1991, 1948; BGH 14 June 2005, NJW 2005, 2614, ETL
2006, 295 (Fedtke). See on the latter case, Section 807-3.
31
RG 20 June 1935, RGZ 148, 154.
32
BGH 2 October 1990, NJW 1991, 747 = VersR 1991, 432; see also BGH 4 April 1989, NJW 1989,
2317, on which see Markesinis and Unberath (2002), 119–122.
33
BGH 25 October 1988, BGHZ 105, 346 = NJW 1989, 707 = VersR 1989, 91 = JZ 1989, 638 (Fischfut-
ter).
34
BGH 21 December 1970, BGHZ 55, 153 = NJW 1971, 886 = VersR 1971, 418 (Motorschiff Christel),
on which see Markesinis and Unberath (2002), 219–222.
35
BGH 31 October 1974, BGHZ 63, 203; BGH 26 February 1980, BGHZ 76, 216.
36
Münchener Kommentar-Wagner (2009), § 823 N 142–173; Kötz-Wagner (2010), N 158–161.
37
Larenz-Canaris (1994), 392 ff; Kötz-Wagner (2010), N 162; Münchener Kommentar-Wagner (2009), §
823 N 160–161.
402-4 § 826 BGB: intentional infliction of damage contra bonos mores

§ 826 holds a person liable if he intentionally causes damage to another person in a manner con-
tra bonos mores, that is, contrary to ethical principles (Sittenwidrigkeit). This provision was
specifically intended for situations in which § 823 I (infringement of a right) and § 823 II (viola-
tion of a statutory rule) were not applicable.
In a classical sense, acting contra bonos mores means acting contrary to the moral feelings
of all good and right-thinking members of society (ein Verstoß gegen das Anstandsgefühl aller
billig und gerecht Denkenden). However, the increasing divergence of moral convictions in so-
ciety has cast doubt on the value of this definition. Moreover, the definition is less apt to serve
as a standard for proper conduct in economic competition or more generally regarding commer-
cial practices. Currently, the idea has become dominant that acting contra bonos mores implies
conduct contrary to the existing economic and legal order or the ordre public.38 Examples of
conduct covered by § 826 are provoking a breach of contract, providing someone with incorrect
information, abusing a right, and most types of unfair competition.
In relation to conduct contrary to the legal and economic order, the courts increasingly refer
to the basic rights enshrined in the Basic Law. This concept consists, notably, of the objective
value order of the constitution and reflects the change from a nineteenth-century free market
State to a twentieth-century social State.39 This implies that constitutional human rights are in-
creasingly considered as a benchmark for conduct, not only in a vertical way between public
authorities and citizens but also horizontally between citizens.
The impact of § 826 is, however, limited since it is required that the defendant acted inten-
tionally. This provides for a high threshold, and it is unsurprising that the courts have construed
this requirement in a broad way.40 First, they accept dolus eventualis, meaning that a person ac-
cepts the consequences of his conduct as being inevitable even if he did not wish those conse-
quences to occur. Hence, it is sufficient that the tortfeasor was aware of the possibility that the
damage would occur.41 Second, intention need only be present in relation to the primary in-
fringement of the victim’s interest. The tortfeasor need not have intended all consequential
damage resulting from the infringement, nor is it required that he actually knew the person his
conduct would harm.42 For instance, if someone has intentionally induced breach of a contract
contra bonos mores, he will probably be liable for the resulting bankruptcy of the contractor
even if this was not his intention. Finally, the courts sometimes also accept a form of reckless-
ness (Leichtfertigkeit) such as in the case of information provided by auditors or expert witness-
es. If the tortfeasor was aware that his conduct was reckless, the courts tend to deem this to be
sufficient to indicate intention. An example of this is the case of a doctor who declared a person
mentally incompetent and advised that the person should be put under guardianship. The diag-
nosis was entirely wrong and could have been avoided by a more careful examination. Although

38
Kötz-Wagner (2010), N 254; Larenz-Canaris (1994), § 78 I 1b, 448; Markesinis and Unberath (2002),
889–890. An important contribution to this change was Konstantin Simitis, Gute Sitten und ordre public.
Ein kritischer Beitrag zur Anwendung des 138 I BGB (Marburg: Elwert, 1960).
39
Kötz-Wagner (2010), N 254.
40
See eg Rolf Sack, ‘Der subjektive Tatbestand des § 826 BGB’, NJW 2006, 945–951.
41
Münchener Kommentar-Wagner (2009), § 826 N 23–30; Kötz-Wagner (2010), N 267–269; Larenz-
Canaris (1994), § 78 I 1b, 447–448.
42
Münchener Kommentar-Wagner (2009), § 826 N 24–25.
the doctor did not intend the damage ensuing from the incapacitation, he was held liable due to
his reckless conduct.43

402-5 Gaps in the BGB and the need for judicial intervention

The limited possibilities the German legal system provides to obtain compensation for pure
economic loss have had four important consequences. First, the courts are inclined rather easily
to establish the infringement of a protected right in the sense of § 823 I. If someone intentionally
or negligently infringes one of the protected rights, he has to compensate all the consequential
damage of that infringement—including economic loss—provided that there is a sufficient
causal connection between the conduct and the harm. This means that, by broadening the con-
cept of infringement of a right, the courts tighten the concept of pure economic loss and thus
provide victims with improved opportunities for obtaining compensation for loss suffered. Se-
cond, in 1904 the German Supreme Court (Reichsgericht) created the right to business (Recht
am Gewerbebetrieb) and later also other instruments to provide better means to obtain compen-
sation for pure economic loss on the basis of negligent rather than intentional conduct. See Sec-
tion 404-1. Third, the BGH has developed a doctrine in which the scope of a contract can be
extended to protect third parties (Vertrag mit Schutzwirkung für Dritte). Fourth, an important
legislative contribution to provide compensation for pure economic loss was the enactment of
the Unfair Competition Act (Gesetz gegen unlauteren Wettbewerb) that protects against negli-
gent infliction of pure economic loss through unfair competition.44
The gaps in the BGB were not only apparent in the area of pure economic loss but also in
other areas. In 1902 the Reichsgericht created the Verkehrssicherungspflichten (safety duties of
care) in order to solve the problem that the BGB did not properly cover liability for omissions
(Section 403). This was followed in 1954 with the BGH creating a general personality right (das
allgemeine Persönlichkeitsrecht) for better protection of personal interests such as privacy, hon-
our, and reputation (Section 404-2).
These developments show the pivotal role the Reichsgericht and the BGH have played in
filling lacunas in the BGB that occurred in the course of time. Although these judge-made rules
are not as spectacular as the ones created by the French Cour de cassation, they make clear that
the BGH’s respect for the legislator stops where justice requires a solution the BGB does not
provide.

403 Fault liability: judge-made safety duties (Verkehrspflichten)

403-1 Origin, character, and place in the legal system

The first lacuna in the BGB occurred in 1902 and related to liability for omissions. The case
concerned a person who suffered damage when he was injured by a rotten tree that had fallen
onto the road. Hence, the damage was not caused by an act but by an omission, that is, the own-
er of the fallen tree had not removed it from the road. It was clear that the claimant had suffered
personal injury and that his right to bodily integrity was infringed (§ 823 I BGB). One could,

43
Münchener Kommentar-Wagner (2009), § 826 N 29–30.
44
§ 9 I UWG in its reformed version of 2004. See for this and the foregoing, Münchener Kommentar-
Wagner (2009), § 826 N 3.
therefore, argue that a Tatbestand was fulfilled and that the owner of the tree had acted unlaw-
fully, however, this did not seem to be the correct conclusion since the tree owner could in fact
have behaved carefully, for example by regularly inspecting the road. The problem arose be-
cause § 823 I primarily seemed to focus on liability for acts, and the scope of § 823 II (violation
of statutory rule) was not sufficient to deal with all omissions.
The Reichsgericht therefore concluded that, in cases of omission, unlawfulness should not be
based simply on infringement of a protected right but also had to be based on the breach of a
safety duty. By this means, the court created unwritten safety duties which are affirmative duties
imposed on persons who have opened their roads, premises, or grounds to the general public
and are intended to ensure the safety of visitors.45 A few months later, the Reichsgericht con-
firmed its decision in a case concerning stairs that had become slippery owing to snow.46 The
Reichsgericht thus added a new and extremely important judicial rule to the legislative frame-
work.47 These safety duties were called Verkehrssicherungspflichten, literally: societal safety
duties. Later, other areas were also covered by safety duties and these were simply called
Verkehrspflichten (societal duties).48 This is now mainly used as a generic term and includes the
Verkehrssicherungspflichten.
The new judicial rule meant that if a person suffers personal injury or property loss as a re-
sult of another person’s omission, the infringement of his right is not sufficient for unlawful-
ness. It is also necessary to establish that the defendant has breached a safety duty
(Verkehrspflicht). If a person operates a fair, skating-rink, swimming pool, riding school, or ho-
tel, it is obvious that at a certain point an accident may occur. However, the fact that the opera-
tor has provided general access to his premises and subsequently an accident occurs, is not suf-
ficient to establish unlawful conduct. Such a qualification requires that the operator has
breached his safety duty by failing to take appropriate safety measures, such as preventing dan-
gerous situations, providing safety materials, or placing warning signs.49
Currently, safety duties are not restricted to duties to act and instead relate to the slightly
broader field of caused damage indirectly. The German commentaries and handbooks on tort
law are now crammed with these safety duties and there have been many mild attempts to cate-
gorize them effectively.50
The safety duties have provoked profound dispute in the legal literature concerning the ques-
tion of how these duties can be fitted into the legal system. A dispute which continues to run.
The BGH holds, as does prevailing opinion in the doctrine, that safety duties have to be catego-
rized in § 823 I since they protect against personal and physical loss.51 A minority, however,
argue that safety duties need to be subsumed in § 823 II since the scope of safety duties is to

45
RG 30 October 1902, RGZ 52, 373.
46
RG 23 February 1903, RGZ 54, 53.
47
Münchener Kommentar-Wagner (2009), § 823 N 232–257; Deutsch-Ahrens (2002), N 253.
48
RG 23 February 1903, RGZ 54, 53, 59: ‘daß derjenige, welcher sein Grundstück zum öffentlichen
Verkehr bestimmt und einrichtet, verpflichtet ist, das in einer Weise zu tun, wie es den Anforderungen der
Verkehrssicherheit entspricht.’ See also BGH 15 June 1954, BGHZ 14, 83, NJW 1954,1403; BGH 30
January 1961, BGHZ 34, 206.
49
Kötz-Wagner (2010), N 170 ff.
50
See Deutsch-Ahrens (2002), N 262–273 (brief) and Münchener Kommentar-Wagner (2009), § 823 N
429–591 (detailed).
51
BGH 27 January 1987, NJW 1987, 2671, 2672 considers ‘die Verkehrs(sicherungs)pflichten allein als
durch die Schutzgüter des § 823 I festgelegte, auf den sozialen Umgang bezogene Verhaltenspflichten.’ It,
thus, does not link the scope of application of the Verkehrspflichten to § 823 II. However, it does so for
the burden of proof as regards negligence (Verschulden); see Section 903.
regulate people’s conduct rather than to protect people’s interests. Given this choice, the re-
striction imposed by § 823 I in relation to the limited number of protected interests no longer
applies. This means that categorizing safety duties under § 823 II opens the door to acknowledg-
ing that these duties also protect against pure economic loss. However, the BGH has not been
convinced by these arguments and keeps the safety duties within the safe haven of § 823 I.52
Although the discussion in the doctrine is complicated, it is mainly of an academic character
since, to the eyes of a foreign observer, safety duties are simply unwritten duties of care (even
though they are of major practical importance).53 The discussion is a fine illustration of the fact
that the German approach to law is strongly characterized by dogmatic and systematic issues
(Section 401-4).

403-2 Application

The case law requires a very high level of care by the person who owes others a safety duty; this
reflects the importance many Germans attach to safety. These duties are based on fault liability,
which means that it is decisive whether the harm could have been avoided by any reasonable
precautionary measure. In their practical application, however, the safety duties come close to a
rule of strict liability although the BGH stresses that they do not amount to a guarantee of the
potential victim’s safety.
The oldest category of safety duties applies to roads and premises. How such a duty works
can be illustrated with the duty to safeguard passers-by from harm caused by snow falling from
the roof of a building. The building’s possessor is obliged to take all measures a careful person
in the same situation would take in order to protect pedestrians, cyclists, and drivers. Whether
he needs to take measures and, if so, which measures (eg warning signs or construction of small
fences on the roof to prevent snowfall), depends on the steepness of the roof, the frequency of
heavy snowfall in that area, and the distance from the roof to the pavement or road.54 Similar
considerations apply, for example, to the owner of a wood bordering on a road to prevent trees
falling onto the road55 and to the owner of a graveyard to protect visitors against falling tomb-
stones.56 This category of safety duties relating to immovable objects has a counterpart in §
836–838 BGB which cover liability for rebuttable negligence for collapsed buildings.
Over time, the courts have extended the application of the safety duties to all other indirectly
caused harm, including by movable objects. For example, a chemist who sells highly explosive
chemicals to a 15-year-old breaches his safety duty and is liable for damage caused by an explo-
sion of the chemicals,57 and the keeper of a motor vehicle must take precautionary measures to
prevent his car being stolen or used for joyriding, because this carries a high risk of causing

52
Von Bar, Verkehrspflichten (1980), 157 ff; Deutsch-Ahrens (2002), N 276. See for an overview Mün-
chener Kommentar-Wagner (2009), § 823 N 58 and 225–228.
53
This practical importance can be illustrated by the fact that Münchener Kommentar-Wagner (2009)
devotes almost half of his commentary on § 823 to the content of Verkehrspflichten in areas varying from
gardens and swimmers, via water pipes and tour operators to manufacturers and doctors.
54
BGH 8 December 1954, NJW 1955, 300.
55
BGH 30 October 1973, MDR 1974, 217; see eg Wilhelm Schneider, ‘Haftungsfragen im Zusammen-
hang mit der Verkehrssicherheit von Bäumen’, VersR 2007, 743–760.
56
BGH 30 January 1961, BGHZ 34, 206.
57
Kötz-Wagner (2010), N 170.
damage to persons or property.58 Most other safety duties relating to motor vehicles are no long-
er of importance due to the strict liability of § 7 Road Traffic Act (Strassenverkehrsgesetz).
Safety duties relate to a variety of activities: someone organizing a firework display,59 operat-
ing a merry-go-round,60 or carrying out construction work.61 Safety duties also apply to skiers
who have to take measures to prevent unreasonable risks to others.62 Medical activities are also
governed by safety duties.63
Safety duties are not owed to everyone: for example, a person who has illegally entered an-
other person’s premises cannot claim since he is outside the duty’s scope of personal protection.
This will certainly be the case as regards a burglar; it may be the case for an adult trespasser but
not necessarily for a child.

404 Fault liability: judge-made rights

404-1 Right to business (Recht am Gewerbebetrieb)

The second problem appearing soon after the BGB entered into force was the difficulty of liabil-
ity for pure economic loss (reiner Vermögensschaden). This was only possible on the basis of §
823 II, § 826 or a specific statutory provision.64 In 1904, the Reichsgericht filled this lacuna by
creating ‘the right inherent in an established and exercised business’ (Recht am eingerichteten
und ausgeübten Gewerbebetrieb). Nowadays this right is also sometimes called the right to
business (das Recht am Unternehmen).65 The BGH has continued along this line and has, for
example, applied the right in cases of unfair competition (eg using another company’s brand),
statements endangering the creditworthiness of a company (eg testing of consumer products),
and strikes.66
The Reichsgericht categorized the right to business as ‘another right’ in the sense of § 823 I
(Section 402-3), however, the character of the right to business differs considerably from that of
the rights enumerated in § 823 I BGB. Before it can be concluded that the right to business is
infringed, the court must balance the interests of the business with those of the infringing party.
This implies, for instance, that the defendant’s freedom of expression can prevent the conclu-
sion that the right to business is infringed.67
An example of this point is a case relating to the public assertion by Greenpeace that a large
German dairy sold ‘genetic milk’ because the cows producing the milk were fed with genetical-

58
BGH 12 November 1963, VersR 1964, 300.
59
BGH 22 February 1966, VersR 1966, 524.
60
OLG Frankfurt 10 February 1961, MDR 1962, 477.
61
BGH 30 June 1964, VersR 1964, 1082.
62
BGH 11 January 1972, BGHZ 58, 40.
63
Münchener Kommentar-Wagner (2009), § 823 N 698–832.
64
Compensation for pure economic loss is generally allowed within the framework of governmental lia-
bility (§ 839): see Section 1803-2.
65
RG 27 February 1904, RGZ 58, 24, on which see Markesinis and Unberath (2002), 372–376; Deutsch-
Ahrens (2002), N 197–201.
66
BGH 11 November 1958, BGHZ 28, 320; BGH 9 December 1975, NJW 1976, 620; BAG 19 June
1973, NJW 1973, 1994. See the overview in Münchener Kommentar-Wagner (2009), § 823 N 187–224.
67
BGH 21 June 1966, BGHZ 45, 296 = NJW 1966, 1617 = JZ 1967, 174 (Höllenfeuer), on which see
Van Gerven (2000), 190–191.
ly modified plants. The dairy claimed that this was factually incorrect because milk cannot be
genetically modified. The BGH considered that untrue statements of fact have less weight when
balanced against competing interests. It also found that the description ‘genetic milk’ was so
vague that it was impossible to assess whether it was correct. Moreover, the statement had been
part of a public debate. On these grounds, the BGH dismissed the injunction sought by the dairy
against Greenpeace.68
Although the drafters of the BGB were reluctant to provide general rules for compensation
of pure economic loss (Section 402-1), the Reichsgericht and later also the BGH have shown
remarkable creativity in finding legal bases on which to grant damages in these situations.

404-2 General personality right (allgemeines Persönlichkeitsrecht)

A third area in which the system of the BGB appeared to have gaps was the protection of priva-
cy and other personality rights. The significance of this protection became clear after the Second
World War, due to events during the war and also because of the development of mass media
and modern technology. In 1954, 50 years after the birth of the right to business, the BGH creat-
ed the general personality right (das allgemeine Persönlichkeitsrecht) in the well-known Dr
Schacht case, thus providing better protection for human dignity and the right of free develop-
ment of one’s personality.69
The general personality right has proved to be an excellent umbrella for protecting all aspects
of the person. It has, for instance, been applied to protect against phone-tapping and taping tele-
phone calls, against disclosing medical data to third parties without the consent of the person
involved, and against the use of photographs for commercial purposes.70
In a long line of case law, the BGH has considered this general personality right to be ‘an-
other right’ in the sense of § 823 I. However, similar to the right to business (Section 404-1), the
character of this general personality right differs from that of those mentioned in § 823 I. Unlike
cases of infringement of bodily integrity or property, infringement of the general personality
right cannot be easily established factually. In most instances, it requires balancing the interests
of the claimant and the defendant. Particularly in cases of infringement by the media, freedom
of expression will be at stake on the part of the defendant.71

68
BGH 11 March 2008, NJW 2008, 2110. See also ETL 2008, 300–301 (Wagner-von Papp and Fedtke).
69
BGH 25 May 1954, BGHZ 13, 334 = NJW 1954, 1404 = JZ 1954, 698 (Dr Schacht). See on this case
also Markesinis and Unberath (2002), 412–415 and Section 705-2. Münchener Kommentar-Wagner
(2009), § 823 N 178–183; Deutsch-Ahrens (2002), N 202–210.
70
BGH 20 May 1958, BGHZ 27, 284; BGH 2 April 1957, BGHZ 24, 72; BGH 26 June 1981, BGHZ 81,
75. See also Kötz-Wagner (2010), N 378 ff; Larenz-Canaris (1994), § 80 II, 498 ff. For a detailed over-
view, see Horst-Peter Götting, Christian Schertz, and Walter Seitz (eds.), Handbuch des Persönlich-
keitsrecht (Munich: Beck, 2008).
71
Kötz-Wagner (2010), N 385 ff.
405 Rules of stricter liability

405-1 General observations

Rules of strict liability are mainly found outside the BGB in specific Acts. The only exception is
the strict liability of the keeper of a luxury animal, which is governed by § 833 BGB. A danger-
ous device or installation (Anlage) or a dangerous activity is usually the basis for a strict liability
rule. The enactment of these rules reflect the specific risks caused by subsequent technological
developments such as damage caused by railways (strict liability rules introduced in 1838), mo-
tor vehicles (1909), aeroplanes (1922), water contamination (1957), and nuclear damage
(1959).72 These rules will be briefly discussed in the sections that follow.
One of the more recent fruits of legislative activity has been a strict liability rule for damage
caused by genetically modified organisms (GMOs), which entered into force in 1993 and was
amended in 2006. It establishes strict liability for research and production sites as well as any
other activities involving GMOs. Liability outside this specific area follows from the general
rules of tort law and property law, in particular from § 906 BGB regarding the protection of
property interests of neighbours.73
The legislator enacted rules of strict liability where fault liability did not lead to a satisfacto-
ry result, however, the legislator did not take too great a risk and often drafted specific rules
with a limited scope. The German system of strict liability is therefore relatively patchy. Efforts
to draft a general strict liability rule for installations creating a specific risk failed due to differ-
ences of opinion regarding the wording and scope of such a general rule (Generalklausel).74
Until 2002, German strict liability rules did not provide compensation for non-pecuniary loss
(Schmerzensgeld), the only exception being § 833 BGB (liability for animals). This additionally
compelled victims to base their claim on a fault liability rule such as § 823 I, as such a claim
would entitle them to compensation for non-pecuniary loss. Since the reform of the law of dam-
ages in 2002 (Schadensersatzrechtsreform), it is also possible to claim compensation for non-
pecuniary loss under a strict liability rule.
Most rules of strict liability limit the amount of compensation to a specific maximum except
for § 22 Water Resources Act (Wasserhaushaltsgesetz), § 31 I 1 Nuclear Act (Atomgesetz), and
§ 833 BGB.75 The maxima were increased by the reform of the law of damages in 2002. Given
that they were not entirely abolished, implies that if the victim suffers a large loss, he must still
rely on fault liability rules to obtain full compensation.
A system of compensation limits was also adopted in the European Product Liability Di-
rective as an option for Member States to limit the amount of compensation payable by the
manufacturer of a defective product.

72
Josef Esser, Grundlagen und Entwicklung der Gefährdungshaftung, 2nd edn. (Munich: Beck, 1969), 97
ff, Hein Kötz, ‘Gefährdungshaftung’, in Gutachten und Vorschläge zur Überarbeitung des Schuldrechts
(Cologne: Bundesjustizministerium, 1981), 1779; Kötz-Wagner (2010), N 495 ff.
73
See briefly ETL 2008 (Wagner-von Papp and Fedtke), 286 ff and in more detail Jörg Fedtke, ‘Econom-
ic Loss Caused by GMOs in Germany’, in B.A. Koch (ed.), Economic Loss Caused by Genetically Modi-
fied Crops. Liability and Redress for the Adventitious Presence of GMOs in Non-GM Crops (Vien-
na/New York: Springer, 2008), 222 ff.
74
Proposed by Hein Kötz, ‘Gefährdungshaftung’, in Gutachten und Vorschläge zur Überarbeitung des
Schuldrechts (Cologne: Bundesjustizministerium, 1981), 1785 ff; see also Hans Stoll, Richterliche
Fortbildung und Überarbeitung des Deliktrechts (Heidelberg: Mueller, 1984), 19 ff.
75
Deutsch-Ahrens (2002), N 365.
405-2 Liability for things

The most important strict liability rule for things is § 7 Road Traffic Act (Straßen-
verkehrsgesetz, StVG) which holds the keeper of a motor vehicle strictly liable for death, per-
sonal injury, and property damage of pedestrians, cyclists, passengers, and drivers caused by the
so-called operational risk (Betriebsgefahr) of the vehicle. The keeper of the motor vehicle can
only invoke an external cause (höhere Gewalt) to escape liability, and contributory negligence
to lower the amount of damages.76
A second important example of strict liability is § 1 I Liability Act (Haftpflichtgesetz): the
operator of a railway, tramway, hover track, or ski lift (but not ski tows) is strictly liable for
death, personal injury, and property damage caused by the operational risk of the means of con-
veyance. Here, also, the operator’s only defences are external cause and contributory negli-
gence. The restriction to operational risks means, for instance, that the rule does not apply when
someone slips on the platform of a railway station, since that type of accident is not related to
the operational risk of the railway. However, the rule does apply when someone suffers damage
caused by the crowd of passengers ascending and descending from a train.77
§ 33 Air Traffic Act (Luftverkehssgesetz) establishes strict liability for the operator of an
aeroplane. This rule also applies to damage caused by the noise of an aeroplane, for instance
when the driver of a motor vehicle, distracted by the noise of a low-flying jet, collides with a
tree.78
In addition, rules of strict liability apply to operators of electricity grids and powerlines (§ 2I
Liability Act), operators of nuclear power plants (§ 25 ff Nuclear Act), and manufactures of de-
fective products in general (Product Liability Act) and of pharmaceutical products in particular
(§ 64 Drugs Act, Arzneimittelgesetz).

405-3 Liability for persons

The BGB contains a small number of specific rules relating to liability for damage caused by
other persons. These are not rules of strict liability but of liability with a rebuttable presumption
of fault (Verschulden).
§ 832 imposes liability on any person who is statutorily or contractually obliged to supervise
another. The provision applies to parents for damage caused by their minor children, as well as
to supervisors of the mentally or physically incapacitated and those who operate crèches. The
supervisor is liable for damage wrongfully caused by the minor or the incapacitated person, un-
less he can prove that he complied with his supervisory duty or that the injury would also have
occurred if that duty had been satisfied. The level of supervision depends on the age of the child
(the younger the child, the more vigilant the supervisor has to be) or on the type of incapacity.
§ 831 holds the employer liable for damage caused by his employees unless he can prove
that he was not negligent in selecting, instructing, and supervising the employee. This is what in
the common law is known as ‘vicarious liability’, albeit that German law provides an escape
route for the employer (by proving he was not negligent) which is not available to the employer
under English and French law. The provision has been strongly criticized for being too employ-

76
Deutsch-Ahrens (2002), N 380–385.
77
Deutsch-Ahrens (2002), N 376–379.
78
BGH 1 December 1981, NJW 1982, 1046 = VersR 1982, 243. Deutsch-Ahrens (2002), N 386–387.
er-friendly. It is not surprising that the BGH—renowned for its masterly ways—has developed
other means for holding employers liable for damage caused by their employees in the course of
employment. This has, factually, deprived the employer of the escape route the legislator pro-
vided for him in § 831. It has also brought German employers’ liability into line with the rules
in France and England.