Экзамен зачет учебный год 2023 / Koziol_BasicQuestions_Germanic

is thus sufficiently well-protected under the law of damages as a rule. Precisely this cannot be said, however, of the contractual partner of someone who lacks the usual powers of reasoning merely to a minor extent: such persons are not normally supervised by anyone who stops them from intervening in a damaging way in the performance of the contract and thus are not accountable for any omission in respect of such prevention. When it comes to contractual partners with lesser deviations from the usual standard of reasoning abilities, the victim would hence typically be left without protection. Thus, no conflict of value judgements is generated by the application of an objective standard of fault in the field of contract.

3.Objective standard for experts

Another important field where an objective standard is applied is that of » experts’ 6 / 89 liability « ( » Sachverständigenhaftung « ): according to § 1299 ABGB, an objective stan-

dard must be used to assess fault on the part of experts 157; an expert must be held accountable for failing to meet the requirement of necessary diligence and necessary, not merely usual, knowledge. Anyone who engages in a specialist activity must therefore guarantee that he has the necessary abilities.

The fact that experts’ actual individual abilities are not taken into account is justified by the following considerations: anyone who exercises an activity that requires special knowledge and powers of reasoning in spite of the lack of relevant ability, creates a source of special danger precisely by so doing, not just for any specific contractual partners, but also for any third parties 158. These » experts « could avoid creating the increased risk by desisting from the challenging activity that they are not in fact up to performing. Furthermore, they gain a benefit from the exercise of the expert activity. Creating a special source of danger, controllable nature of the risk and the financial interest in the source of danger all speak clearly in favour of a strict standard of liability. In this respect, the imposition of strict liability serves deterrent purposes: the threat of liability when activities are engaged in despite the fact that the relevant person does not possess the special abilities necessitated by such, creates an incentive not to take on such activities in the first place or to refrain from them in the future.

157See on this Karner in KBB, ABGB3 § 1299 no 1 f; Reischauer in Rummel, ABGB II / 13 § 1299 no 2 and 5; OGH 6 Ob 521 / 81 in JBl 1982, 534; 1 Ob 605 / 84 in SZ 57 / 140 = JBl 1985, 625; 10 Ob 501 / 89 in JBl 1990, 49; 9 Ob 23 / 07h in ÖBA 2008, 658 ( Madl ).

158The structural engineer who calculates the bridge so that it is in danger of collapse; the rooftiler who attaches the tiles so badly that they threaten to fall down onto the street and the doctor in hospotal who treats the patients of his employee so that they sustain long-term health damage, usually endanger people who are not their contractual partners.

4.Objective standard when dangerous things are used

6 / 90 There is also a third area in which liability for objective carelessness seems justified: if the accusation of merely objectively deficient conduct is considered to be a lesser liability ground 159, then this cannot justify liability on its own but only in combination with another criterion, in particular with the element of an increased risk. This is also recognised by the ABGB 160, in that it does not impose strict liability but does impose liability in the case of even objectively careless behaviour – due to the special risk – upon the keeper of a defective construction ( § 1319 ABGB ) or an animal ( § 1320 ABGB ). Accordingly, it may be assumed in general that when damage occurs in association with the use of an especially dangerous thing, an objective standard of care is sufficient 161.

5.Conclusion

6 / 91 In summary it can be noted as follows: within contractual relationships, when activities requiring special abilities are exercised and in combination with the especial risk posed by something, it is entirely appropriate to apply an objective standard.

In the field of torts, on the other hand, subjective misconduct must be required for the imposition of a duty to compensate on the basis of culpable damage. It must be emphasised that the denial of fault due to below average abilities does not necessarily lead to full exclusion of the perpetrator’s liability: even those incapable of committing a tort may be liable under § 1310 ABGB, § 829 BGB 162 when various factors are taken into consideration. The relevant value judgements must be all the more valid if the perpetrator is not incapable of committing a tort due to grave lack of understanding but instead has merely slightly below average abilities that mean in some cases he should not be deemed at fault 163.

6.Wrongfulness and negligence

6 / 92 Insofar as negligence is thus measured according to a subjective standard in the field of torts, there is a clear boundary between wrongfulness and negligence: only objective criteria are relevant in deciding whether there has been wrongfulness; hence the assessment of wrongfulness must be made according to a general yard-

159Wilburg, Elemente 56, 284.

160See on this Koziol, Bewegliches System und Gefährdungshaftung, in: F. Bydlinski / Krejci / Schilcher / V. Steininger ( eds ), Das Bewegliche System im geltenden und künftigen Recht ( 1986 ) 54 f.

161Von Caemmerer, Die absoluten Rechte in § 823 Abs 1 BGB, Karlsruher Forum 1961, 27, tends to consider objective carelessness enough for third-party liability competing with strict liability.

162See Koziol, Haftpflichtrecht I3 no 7 / 5.

163Thus, U. Huber, E.R. Huber-FS ( 1973 ) 273 with reference to BGHZ 39, 281.

stick, looking at what is reasonable behaviour for the subjects of the rule 164. When it comes to fault, on the other hand, » ability « must be determined on a strictly subjective basis according to the individual’s real abilities. Therefore, by no means all wrongful behaviour is also culpable 165. The difference is revealed when it comes to damage caused by people with below average abilities; the clearest example is that of the mentally ill, whose behaviour is wrongful but who usually ( § 1310 ABGB ) cannot be deemed culpable. In the case of those capable of committing tort, however, it must be assumed that they possess the subjective abilities at issue ( cf § 1297 ABGB ), so that when objective duties of care are infringed it is assumed that they acted culpably; thus, the perpetrator has the burden of proof to show that he was not subjectively at fault. This is also in tune with the generally accepted division of the burden of proof in respect of exclusion or reduction of the capacity to commit torts under §§ 827 f BGB, so that under German law too there is an assumption in favour of subjective fault if duties of care are objectively breached 166. In central and eastern European legal systems, this kind of assumption is often anchored expressly in legislation 167.

The application of a subjective standard would also seem to suggest that in 6 / 93 assessing fault extraordinarily good abilities should also be taken into account so

that negligence might even be affirmed if no subjective accusation could be levelled against the average person 168. From the objective establishment of the duties of care that form the basis for the assessment of wrongfulness, however, it must in principle be inferred: if someone would have been able to exercise a greater degree of care or to identify the risk of damage only because of his extraordinary abilities, he will in such cases usually not be liable to compensate as his conduct will not have been wrongful 169. This is because wrongfulness depends on whether the requirements in respect of conduct are appropriate in relation to the average subjects of the rule. Nonetheless, there may be protective laws that exceed

164On this in detail Münzberg, Verhalten und Erfolg 191 ff.

165Cf OGH 8 Ob 165 / 76 in ZVR 1989 / 64. Hence, the view taken by Hannak, Die Kanalisierung der Haftung, JBl 1961, 540, that every infraction of a protective rule is culpable, is wrong.

166Wilhelmi, Risikoschutz 346 f.

167See Will / Vodinelic, Generelle Verschuldensvermutung – das unbekannte Wesen. Osteuropäische Angebote zum Gemeineuropäischen Deliktsrecht ? Liber amicorum for Helmut Koziol ( 2000 ) 307; Koziol, Die schadenersatzrechtlichen Bestimmungen des Entwurfs eines Tschechischen Zivilgesetzbuchs in rechtsvergleichender Sicht ( Czech ), in: Švestka / Dvořák / Tichý ( eds ), Sborník statí z diskusních fór o rekodifikaci občanského práva ( 2008 ) 22.

168Under German law, the above average abilities of the specific perpetrator are taken into consideration – in the face of all logic – despite the objective standard of fault; cf Deutsch, Der Begriff­ der Fahrlässigkeit im Obligationenrecht, Keller-FS ( 1989 ) 111 f; Grundmann in MünchKomm, BGB II5 § 276 no 56 with additional references.

169Cf K. Wolff in Klang, ABGB VI2 46; OGH 1 Ob 50 / 70 in EvBl 1970 / 294; 8 Ob 165 / 76 in ZVR 1975 / 269. Taking a different view Zeuner, Gedanken über Stellung und Bedeutung des Verschuldens im Zivilrecht, JZ 1966, 8 f.

these boundaries or also rules that govern the conduct of especially qualified persons and thus factor in extraordinary abilities from the beginning ( cf §§ 1299, 1300 ABGB ) 170. Apart from this, people may enter into legal agreements that provide explicitly for the deployment of special abilities, which then naturally must be taken into account when examining whether obligations have been breached 171. Beyond this, it must generally be assumed that actual, real, above average knowledge must be taken into account and thus, that the perpetrator has acted wrongfully and culpably if he neglects such 172.

6 / 94 If negligence must be assessed objectively, for example in the case of breach of contract or that of experts, it would seem that a finding that behaviour has been wrongful simultaneously means there has been fault. However, this is not the case: even in this field, the perpetrator’s incapacity to commit a tort may mean that the perpetrator has engaged in wrongful behaviour but is not at fault 173. Moreover, grounds for excluding fault may preclude subjective liability despite the fact that behaviour was wrongful. Wrongfulness and fault must accordingly be distinguished in this field as well.

III.  Other defects in the damaging party’s own sphere

A. Misconduct of persons

1.Introduction

6 / 95 § 1313 ABGB starts with the self-evident fact that: » As a rule no one is responsible for unlawful acts of third parties in which he had no part.« Thereafter, however, the law recognises significant exceptions to this rule, based on the notion of liability for damage due to defects in the relevant party’s sphere of responsibility 174: as already indicated by the wording of § 1313 ABGB, this entire section of the law deals exclusively with » third-party wrongful acts «. There is general consensus, internationally as well, that objective misconduct, ie conduct breaching duties, on the part of auxiliary may give rise to vicarious liability 175. Thus, an especially grave defect within the

170See on this in Koziol, Haftpflichtrecht II2 182 ff.

171Cf Zeuner, JZ 1966, 8 f.

172Reischauer in Rummel, ABGB II / 13 § 1297 no 3; P. Bydlinski, Gedanken zur Haftung der Abschlußprüfer, Ostheim-FS ( 1990 ) 356 f; OGH 10 Ob 501 / 89 in JBl 1990, 48.

173Cf Stathopoulos, Bemerkungen zum Verhältnis zwischen Fahrlässigkeit und Rechtswidrigkeit im Zivilrecht, Larenz-FS ( 1983 ) 645 f.

174Wilburg, Elemente 43 und 225; F. Bydlinski, System und Prinzipien 214 ff.

175This requirement is obviously common to all legal systems, cf Galand-Carval, Comparative Report on Liability for Damage Caused by Others, in: Spier, Unification: Liability for Others 300; Giliker, Vicarious Liability in Tort ( 2010 ) 27 ff.

firstly deploys such person to discharge his affairs and thus to pursue his ( the principal’s ) own interests and, secondly, he involves the auxiliary in his ( the principal’s ) sphere of responsibility 177. The question of when auxiliaries are to be included in the principal’s sphere of responsibility and the further criteria that the principal’s liability is based on is answered differently in the Austrian and German as well as other legal systems too, depending on whether the auxiliary is an Erfüllungsgehilfe ( performance agent, employed by the principal to perform some contractual obligation for him ) or a Besorgungsgehilfe ( vicarious agent, an auxiliary who performs a task for the principal under his instruction and supervision outside a contractual obligation ) or one of the executive organs ( leading auxiliaries ) of legal entities.

176Wilburg, Elemente 43 und 225; F. Bydlinski, System und Prinzipien 214 ff.

177F. Bydlinski, System und Prinzipien 206 f.

6 / 98 Besides the liability for the auxiliaries deployed, there may also be liable for other persons. In some legal systems the misconduct of children in particular is imputed to the parents 178. However, very predominantly 179, also in Austria ( § 1309 ABGB ) 180 and Germany ( § 832 BGB ) 181, liability is only imposed upon parents and other people with a duty to supervise children for their own negligence as regards the supervision necessary. Thus, the liability of parents is considerably less stringent than that of principals for their auxiliaries, principals being largely liable for the imputed misconduct of their auxiliaries without committing any fault themselves. This can easily be justified by reference to the fact that it is not only in the parents’ interests that they bring up their children but also in the public interest; furthermore, parents do not generally derive any financial or material benefit from their children, on the contrary they bear considerable expenditure for them.

6 / 99 Absolutely in line with this, those in charge of supervising people with mental disabilities are only liable for damage caused by their actions if they culpably neglect their supervision duties; there is no liability for the conduct of the mentally ill. The supervision of such persons is also in the interests of the public and furthermore, these persons do not serve the promotion of their supervisors’ interests.

2.Auxiliaries’ personal liability

6 / 100 Before we look in more detail at the liability for the different types of auxiliary, an important question for all auxiliaries will be discussed, namely that of their personal liability. This issue is resolved differently in the various national legal systems 182, namely as to whether the auxiliary is personally liable alongside the principal for the damaging behaviour of the auxiliary – insofar as all the relevant criteria are fulfilled – and thus the two are liable jointly and severally. Austrian and German law does not provide for any exclusion of the personal liability of auxiliaries; in principle, this solution seems fair: there is no reason why a perpetrator should be freed from his liability merely because someone else is made liable. But also from the perspective of the victim, there is no convincing reason why he should have no claim against the auxiliary solely because liability is imposed

178Thus, in particular in France, see Franco-Terminal / Lafay / Moréteau / Pellerin-Rugliano, Children as Tortfeasors under French Law, in: Martín-Casals, Children I 193 ff; cf further ibid MartínCasals, Comparative Report 441 f.

179See Martín-Casals in: Martín-Casals, Children I 441 f; Giliker, Vicarious Liability 196 ff.

180On this S. Hirsch, Children as Victims under Austrian Law, in: Martín-Casals, Children I 39 ff.

181On this G. Wagner, Children as Tortfeasors under German Law, in: Martín-Casals, Children I 235 f.

182Brüggemeier, Haftungsrecht 119 ff; van Dam, Tort Law 151 ff; Galand-Carval in: Spier, Unification: Liability for Others 304 f; Giliker, Vicarious Liability 30 ff; Schelp, Die Haftungsbelastung des Arbeitnehmers bei Schädigung Dritter ( 2003 ) 8 ff.

upon the principal. While the principal may typically be better able to pay compensation than his auxiliary, this is not necessarily the case and it would not be justifiable if the victim had no claims against the primary perpetrator because someone else was – also – liable. It is very much in line with the general rules that if the damage is imputable to several persons, such are jointly and severally liable and no good reason presents itself as to why this should be any different in this case. The protection considered necessary for auxiliaries against excessively onerous burdens can be obtained by excluding recourse claims by the principal against the auxiliaries and by the auxiliary’s recourse claims against the principal. Such recourse claims are provided for in Austrian law, on the one hand, by § 3 DHG 183, on the other hand, they can also be based on the risk liability rule under § 1014 ABGB in the case of activity-specific increased danger 184. If the latter should not be enforceable due to the economic circumstances of the principal, it still seems fairer that the perpetrator, who has acted unlawfully and culpably, should bear the risk that the principal be insolvent and not the innocent victim. In many cases, however, this problem does not arise because the third-party liability insurance taken out by the principal covers his liability and that of the auxiliary.

Nonetheless, it must be acknowledged that there may be unacceptable bur- 6 / 101 dens for the auxiliary if the principal is insolvent, there is no cover by a third-party liability insurance policy and the damage is enormous in scope as a direct result

of the circumstances of the principal’s sphere of responsibility. This may happen in particular if the auxiliary works in a – dangerous – plant belonging to the principal. A small lapse of concentration could lead to disproportionate, ruinous duties to compensate. In such individual cases, the reduction clause – presented in more detail below – would be an appropriate way to facilitate a solution in proportion to the interests at issue.

3.Liability for performance agents  ( Erfüllungsgehilfen )

Before entering into the liability for Besorgungsgehilfen ( vicarious agents ) rele- 6 / 102 vant to the field of tort, a glance at liability for Erfüllungsgehilfen would seem use-

ful, as material aspects of the evaluation will become clearer.

According to § 1313 a ABGB, a person who is obliged to render performance to another and uses another in the performance of his obligations is liable for the fault of persons who he deploys for such performance, just as for his own. This

183German case law reaches similar conclusions, see BAG in 8 AZR 300 / 85 = NJW 1989,854. Otte / Schwarz, Die Haftung des Arbeitnehmers3 ( 1998 ) no 455 ff; Sandmann, Die Haftung von Arbeitnehmern, Geschäftsführern und leitenden Angestellten ( 2001 ) 10 ff and 51 ff in each case with additional references.

184On this in detail B.A. Oberhofer, Außenhaftung des Arbeitnehmers ( 1996 ) 123 ff.

comprehensive liability of the auxiliary’s fault corresponds to § 278 of the German BGB and a comparative law overview shows that this sort of far-reaching accountability is also set out by other legal systems 185.

6 / 103 This relates to the use of auxiliaries to fulfil already existing performance obligations; these may either be based on a transaction or the law 186. According to the prevailing Austrian understanding of § 1313 a ABGB not only – as is indeed suggested by the wording – performance obligations are included but also other legal special relationships, above all those arising from pre-contractual contact 187. Understood this way, § 1313 a ABGB largely corresponds to the somewhat more broadly formulated provision in § 278 BGB, which speaks more generally of the performance of obligations.

6 / 104 Nonetheless, the non-commercial character of the obligations within special legal relationships may also be material. This is not meant to apply to statutory obligations within special legal relationships, such as those under the law of damages and the law on unjust enrichment, as these are not based on generosity and must largely be treated like commercial relationships 188. Rather it only applies to donations ( Schenkungen ); in such cases it is recognised that liability is limited in that the objective duties of care are reduced 189. This limitation applies, however, only to the performance duties but not to ( special ) duties of care 190. Insofar as the duties of performance are concerned, liability for performance agents must also be mitigated 191.

6 / 105 The reason for the far-reaching accountability of the principal for the misconduct of the auxiliaries deployed by him can be found in the following considerations 192: obligors are allowed by the legal system – except in rather unusual highly personal obligations – to deploy auxiliaries in order to carry out their obligations. This complies – as F. Bydlinski 193 highlights – with the maxim of commutative justice: someone who can and may increase his financial benefits and economic opportunities by deploying auxiliaries, ought also to bear the damage

185See Galand-Carval, Comparative report, in: Spier, Unification: Liability for Others 290 f.

186Karner in KBB, ABGB3 § § 1313 no 2.

187On this, eg, F. Bydlinski, Zur Haftung des Erfüllungsgehilfen im Vorbereitungsstadium, JBl 1995, 477 ff; Koziol, Haftpflichtrecht II2 336 ff; Welser, Vertretung ohne Vollmacht ( 1970 ) 79 ff; M. Wilburg, Haftung für Gehilfen, ZBl 1930, 644 ff.

188Cf Koziol, Haftpflichtrecht I3 no 9 / 5 und 6.

189See Koziol, Haftpflichtrecht I3 no 4 / 41; likewise Bollenberger in KBB, ABGB3 § 945 no 1. Usually there is no reference to a limitation of the duties of care, instead it is assumed that the donator is only liable in the case of gross negligence ( Stanzl in Klang, ABGB IV / 12 618 ), which indeed leads largely to the same results.

190Welser, Bürgerliches Recht II13 ( 2007 ) 193; OGH 4 Ob 140 / 77 in SZ 50 / 137.

191Thus Wilburg, Elemente 224, 226; in the same sense F. Bydlinski, System und Prinzipien 208.

192On this, eg, Iro, Besitzerwerb durch Gehilfen ( 1982 ) 215 ff; Koziol, Haftpflichtrecht II2 336; Spiro, Erfüllungsgehilfen 57 ff; M. Wilburg, ZBl 1930, 648 f; OGH 4 Ob 251 / 06z in SZ 2007 / 1.

193System und Prinzipien 207 f. Cf also Giliker, Vicarious Liability 237 ff.

the auxiliary: the damage must be brought about in the course of the performance and not merely on the occasion of the performance 195. However, this distinction is not easy in practice. It is not a logical or constructively clearly resolvable problem but rather a value judgement as to which misconduct on the part of auxiliaries may fairly be imputed to the principal, something which cannot be inescapably decided. In other legal systems too, all acts by auxiliaries are by no means imputed to the principal, instead there are limitations; nonetheless these are not clear and satisfactory statutory stipulations either and similar problems arise 196. Reference is had firstly to the related legal systems of Germany 197 and Switzerland 198, as well as the Netherlands 199. In Italy 200 too, it is a requirement that the transferred task has been a necessary cause ( occasionalità necessaria ) of the dam-

194This aspect is emphasised by F. Bydlinski, System und Prinzipien 208 f.

195Cf M. Wilburg, ZBl 1930, 660 ff; Kletečka, Mitverschulden durch Gehilfenverhalten ( 1991 ) 38 ff; Koziol, Zurechnung ungetreuer Bank-Mitarbeiter ( 2004 ) 35 ff with additional references.

196See on this also the country reports in Spier, Unification: Liability for Others, in particular:

W.V.H. Rogers, English Law 69; Galand-Carval, French Law 93 f; Haentjens / du Perron, Dutch Law 176; Widmer, Swiss Law 270.

197Grundmann in MünchKomm, BGB II5 § 278 no 46 ff with additional references.

198Spiro, Erfüllungsgehilfen 233 ff; Wiegand in BSK, OR I4 Art 101 no 10.

199Asser / Hartkamp, Verbintenissenrecht III12 ( 2006 ) 149 ff.

200Cf on this the country report by Scarso, Zurechnung ungetreuer Bankmitarbeiter nach itali­ enischem Recht in: Koziol, Zurechnung 116 no 7 and 9.

age inflicted, thought the interpretation of this requirement likewise varies. In France, Art 1384 ( 5 ) Code civil only requires in respect of the tortious liability of the principal that the auxiliary must have brought about the damage in exercising the activity transferred to him ( dans les fonctions auxquelles ils les ont employés ), but in the case of the abus de fonctions a corresponding limitation in the field of liability for performance agents is widely advocated 201. Not all damaging acts by auxiliaries are imputed to the principal under English law either; it is not sufficient that the auxiliary gained the opportunity to bring about the damage by being deployed by the principal 202.

6 / 108 A merely partly satisfactory demarcation of liability is required by taking into consideration the above-mentioned basic principles: the far-reaching liability of the obligor for his performance agents is the necessary consequence of allowing him to use auxiliaries, as anything else would weaken the position of the obligee. This justification is certainly very valid when the misconduct concerned took place in the very course of the performance of the duties to perform deriving from the obligation within the special legal relationship between obligee and obligor, ie, for example, the delay in rendering performance. On the other hand, it seems natural that the principal should not be held to account for the damaging conduct of the persons he has deployed as auxiliaries if such conduct was engaged in without any kind of spatial, chronological or factual connection with the tasks the principal transferred to such. Difficulties arise, however, in the interim area, when the protection of the other goods of the obligee ( Integritätsinteresse ) and thus the failure to observe ( special ) duties of care is concerned: which duties should also be observed otherwise by auxiliaries. An example would be the damage to things in the flat of the customer who ordered something. In this field, the above-cited grounds do not suffice for the comprehensive liability of the auxiliary’s conduct without further ado 203: in this respect, the tort liability of the auxiliary is triggered in any case. On the other hand, the connection with the performance of the duties arising from the principal’s obligation is already much weaker as it is no longer the protection of the principal’s partner’s interest in performance which is at issue but instead the protection of his other goods and the special risk arises because the partners opened up their spheres of interest to each other.

201Viney / Jourdain, Les conditions de la responsabilité3 ( 2006 ) Nr 824; cf also Viney, Introduction à la responsabilité3 ( 2007 ) Nr 170-3. Against the opportunity to refer to abus de fonctions Le Tourneau / Cadiet, Droit de la responsabilité et des contrats7 ( 2008 ) Nr 3481 f, 7533 and Malaurie / Aynès, Les Obligations II11 ( 2001 ) Nr 572, 618.

202See the country report by Elliot, Institutional Responsibility for Employee Frauds in the Banking Sector: The Position in English Law, in: Koziol, Zurechnung 104 no 12; further Dutzi, Haftung für Hilfspersonen im englischen Vertragsund Deliktsrechtrecht ( 2001 ) 98 ff.

203On this in particular E. Schmidt, Zur Dogmatik des § 278 BGB, AcP 170 ( 1970 ) 503 ff; Esser / Schmidt, Schuldrecht I / 28 § 27 I 4.