Экзамен зачет учебный год 2023 / Koziol_BasicQuestions_Germanic

§ 1313 a ABGB for violation by auxiliaries of the main performance duty characteristic for the obligation within the special legal relationship to the obligee 210. This applies both to negligent and intentional violations of the main performance

204See, eg, Grundmann in MünchKomm, BGB II5 § 278 no 46. Against this, however, eg Spiro, Erfüllungsgehilfen 232.

205Cf on this Spier / Hartlief / van Maanen / Vriesendorp, Verbintenissen uit de wet en Schadevergoe­ ding5 ( 2009 ) Nr 90.

206See Wilburg, Elemente 224 f; Koziol, Haftpflichtrecht II2 345 f.

207This is why E. Schmidt ( E. Schmidt, AcP 170, 503 ff; Esser / Schmidt, Schuldrecht I / 28 § 27 I 4 ) cannot be endorsed when he does not see any way to differentiate and thus wants to impute auxiliaries’ conduct when special duties of care are violated in any case.

208Larenz, Lehrbuch des Schuldrechts I14 ( 1987 ) § 27 III b 4; idem, Zum heutigen Stand der Lehre von der objektiven Zurechnung im Schadensrecht, Honig-FS ( 1970 ) 79. See on this also Koziol, Haftpflichtrecht I3 no 8 / 77 ff with additional references.

209This is stressed, eg, by Spiro, Erfüllungsgehilfen 240 ff.

210Thus, eg, OGH 1 Ob 711 / 89 in SZ 63 / 201; Koziol, Haftpflichtrecht II2 344 ff with additional references from case law and doctrine.

duty. The principal is also accountable for the violation of independent ancillary performance duties.211 This is not distinguished from liability for violation of main performance duties.

6 / 112 As far as the duties to inform and exercise ( special ) care are concerned, the OGH 212 has held that the intentional nature of the auxiliary’s act does not preclude the possibility that a prohibited action may still be qualified as the fulfilment of a contractual duty of the obligor; this corresponds to a view defended forcefully in teaching 213, as well as Italian 214 and English law 215. However, in these cases too, the Supreme Court requires that there be an internal factual connection between the auxiliary’s damaging act and the performance of the contract. A trend can be distinguished in case law towards making this connection contingent upon the violation of » special duties of care specific to the contract « 216. In this manner, the OGH rightly takes into account the fact that in cases where con- tract-specific duties of care have been violated there is generally no tortious liability of the auxiliary towards the principal’s contractual partner, who bears the loss as the violated special duties of care did not exist towards everyone. Besides this, the fact that the violation of contract-specific duties of care is even weightier than the violation of duties existing towards everyone must weigh in: the recognition of special contractual duties of care is based after all precisely on the fact that the business partner is exposed to special risk and accordingly, that special duties of care seem necessary.

6 / 113 In sum, this view also substantially corresponds to the standpoint taken in other jurisdictions: German 217 and Italian 218 case law seems to follow the same line on the whole; as does English case law 219. Indeed French law goes even further 220: liability for auxiliaries would even be applicable in the case of a murder that the auxiliary committed at the workplace during working hours. For instance, the conduct of an insurance inspector who embezzled money collected for his company was imputed to the principal 221. Likewise, the liability of the principal

211Thus, eg, Larenz, Schuldrecht I14 § 20 VIII ( 301 ).

212OGH 1 Ob 643 / 84 in EvBl 1978 / 113; 1 Ob 643 / 84 in JBl 1986, 101 ( Koziol ); 3 Ob 296 / 98w in ZVR 2000 / 102.

213See, eg, Spiro, Erfüllungsgehilfen 240 ff with additional references.

214See Scarso, Zurechnung ungetreuer Bankmitarbeiter nach italienischem Recht, in: Koziol, Zu­- rechnung ungetreuer Bank-Mitarbeiter ( 2004 ) 116 no 7.

215Cf Elliott, Institutional Responsibility for Employee Frauds in the Banking Sector: The Position in English Law, in: Koziol, Zurechnung 105 no 13 ff.

216Insofar the OGH – quite rightly – goes beyond my ( Haftpflichtrecht II2 345 f ) earlier position that intentional conduct of auxiliaries only be imputable when duties to perform are violated.

217On this, eg, Grundmann in MünchKomm, BGB II5 § 278 no 47 with additional references.

218See the country report by Scarso in: Koziol, Zurechnung 120 no 15 ff.

219On this Elliott in: Koziol, Zurechnung 105 no 15.

220Cf Galand-Carval, French Law, in: Spier, Unification: Liability for Others 93 f.

221Cass ass plén 19. 5. 1988, D 513.1988 ( Larroumet ).

for embezzlement committed by the employee of a notary 222 and by a bank employee 223 was affirmed.

The Austrian Draft seeks to take these ideas into account by drawing on adequacy as a basis in that the liability of the principal applies not only when duties to perform are violated but also in the case of other misconduct that is not extraordinary in respect of the performance agent’s activity ( § 1305 ( 1 ) sentence 2 Austrian Draft ).

In conclusion, it should be recalled to mind that the principal may even be 6 / 114 liable if the auxiliary’s conduct is no longer imputable under § 1313 a ABGB, as the principal is also held to account for his own fault when it comes to the organisa-

tion, selection and supervision of auxiliaries.

when selecting the auxiliaries, procuring equipment and supervision. This narrow provision has been considerably expanded by case law 227; however, it remains

222Flour / Aubert / Savaux, Le fait juridique Nr 218; Cass civ 2e 4. 3. 1999, R C Ass 1999, no 124.

223Flour / Aubert / Savaux, Le fait juridique Nr 218; Cass com 14. 12. 1999, RTD civ 2000, 336 ( P. Jourdain ).

224See the comparative law report by Galand-Carval in: Spier, Unification: Liability for Others 289 ff; further Brüggemeier, Haftungsrecht 119 ff; van Dam, Tort Law 437 f, 448 ff; G. Wagner, Vicarious Liability, in: Hartkamp / Hesselink / Hondius / Mak / du Perron ( eds ), European Civil Code4 907 ff.

225Cf Galand-Carval, Comparative Report on Liability for Damage Caused by Others, in: Spier, Unification: Liability for Others 300; Giliker, Vicarious Liability 27 ff.

226Wilburg, Elemente 43 und 225; F. Bydlinski, System und Prinzipien 214 ff.

227Cf G. Wagner in MünchKomm, BGB V5 § 831 no 2. A comparison with the common law is offered by Giliker, Vicarious Liability or Liability for the Acts of Others in Tort: A Comparative Perspective, JETL 2011, 34 ff.

largely a provision of fault-based liability, though it is at least made stricter by the reversal of the burden of proof.

In Austria, § 1315 ABGB provides – besides the liability for fault in selection or supervision of auxiliaries on the basis of the general rules – for non-fault-based liability of the principal at least when he deploys an incompetent or, knowingly deploys 228, a dangerous auxiliary. The strict liability for incompetent auxiliaries is based on the idea that there is a defect in the principal’s sphere of responsibility that generates a considerable risk 229. The ABGB does not, however, consider the notion that the person who derives the benefit from deploying the auxiliary should also bear the harm as a sufficient ground for liability by itself.

6 / 117 Nevertheless, most legal systems that provide for liability for every culpable infliction of damage by the auxiliaries in the field of tort as well as for performance agents go considerably further, following the internationally increasingly popular approach of » respondeat superior « 230. This broad, non-fault-based accountability is laid down also by the EGTL in Art 6 : 102 PETL 231, as well as by the Study Group on a European Civil Code in Art 3 : 201 PEL Liab Dam. The Alternative Austrian Draft 232 developed by a working group also takes this approach with a proposal for the amendment of § 1315 ABGB.

The widespread principle » respondeat superior « is problematic nonetheless and does not contain any justification 233. The starting point for analysis must be a notion that was clearly expressed by the ABGB almost 200 years ago in § 1313 and which is, in fact, self-evident: » As a rule no one is responsible for unlawful acts of third parties in which he had no part.« In order to make a case for liability for third-party conduct within a consistent overall system, it is necessary to require grounds for liability that have a similar weight to those that are provided for liability in respect of one’s own faulty conduct or for liability for dangerous things.

6 / 118 As is otherwise generally the case, liability for Besorgungsgehilfen cannot be based on one ground but requires a package of grounds 234 that can interact with

228In this case too, it is not fault-based liability which is at issue since only the knowledge of dangerousness is required but not fault in relation to the occurrence of the damage, see M. Wilburg, Haftung für Gehilfen, ZBl 1930, 724 f.

229Koziol, Haftpflichtrecht II2 355.

230See on this Galand-Carval in: Spier, Unification: Liability for Others 306; Giliker, Vicarious Liability 6 ff; Harrer / Neumayr, Die Haftung des Unternehmers für Gehilfen, in: Reischauer / Spielbüchler / Welser ( eds ), Reform des Schadenersatzrechts II ( 2006 ) 137 ff; Jaun, Sorgfaltspflichtverletzung 378 ff; Renner, Die deliktische Haftung für Hilfspersonen in Europa ( 2002 ); G. Wagner, Reform des Schadenersatzrechts, JBl 2008, 11 f.

231See Moréteau, Introduction, in: EGTL, Principles 112 ff.

232Reischauer / Spielbüchler / Welser ( eds ), Reform des Schadenersatzrechts III – Vorschläge eines Arbeitskreises ( 2008 ) 16 ff. In favour Pfeiffer, Die Entwürfe für ein neues österreichisches Schadensersatzrecht – Fortschritt für Österreich und Vorbild für Deutschland ? ( 2011 ) 92 ff.

233See Giliker, Vicarious Liability 13 ff, 228 ff.

234Thus, rightly Giliker, Vicarious Liability 244 ff.

asks his friend to deliver something and this pedestrian friend causes a traffic accident due to carelessness. Clearly the principal in this case creates no special danger, as the messenger was simply a usual general road user. Hence, we are left solely with the circumstance that a third party undertakes action by the will of the principal and in his interests; this cannot, however, justify on its own imputing

235This also applies to damaging processes that are based on an action not controlled by will, for example if the auxiliary suffers a heart attack or suddenly loses consciousness. In this respect it would still certainly be possible to speak of an objective defect within the principal’s sphere but this cannot be sufficient to impose liability on the principal. If no blame can be attached to such as regards the selection or supervision of the auxiliary and if the auxiliary cannot be accused of any unlawful behaviour then this is counted as an accident which otherwise also cannot trigger any compensation claims for the victim when it does not occur in connection with an auxiliary.

236System und Prinzipien 212.

237Also Harrer / Neumayr in: Reischauer / Spielbüchler / Welser, Reform II 142 ff, only point to comparative law findings but do not offer any theoretical justification.

238Renner, Deliktische Haftung für Hilfspersonen in Europa 181 ff.

to such principal the misconduct which occurred in the course of pursuing his interest in the absence of any other criteria. The weight of this ground for liability certainly seems far less substantial than the weight of those grounds required to establish liability for one’s own culpable behaviour or – insofar as such is recognised in the first place – for sources of special danger.

6 / 121 As is confirmed by a comparative law overview, this idea that the principal can be held accountable for any and all misconduct on the part of persons active in his interests is not by any means actually applied at this level of unlimited generality. This is even shown by the fact that both in legal systems with comprehensive as well as those with restrictive liability of auxiliaries it is recognised that the principle is not accountable for all conduct by persons who have been employed to carry out some errand but are supposed to carry out this task independently and without further instructions 239. This limitation of liability seems justified because the principal cannot exercise influence in the sense that he has no means of directing the auxiliary and thus does not control the danger. Therefore, it is widely recognised that the auxiliary’s actions are generally only included in the principal’s sphere of responsibility if the principal is able to direct the auxiliary, as this is what incorporates such into his sphere and also what gives him the power to control the danger by means of this steering influence 240.

These principles are also taken into account by § 1306 ( 3 ) Austrian Draft, which provides that liability for the misconduct of independent auxiliaries is not governed by the special rules on liability for auxiliaries but by the general principles and this requires personal fault on the part of the principal in selecting or supervising the auxiliary. This assures consistency with the general principles of liability and – as is by no means to be taken for granted – simultaneously makes it clear that a principal may be subject to duties of care when it comes to the selection and supervision of independent auxiliaries.

6 / 122 In relation to non-independent auxiliaries, however, § 1306 ( 1 ) Austrian Draft does not keep to the unproblematic liability of the principal for his own fault, which is clearly in line with the general principles. On the other hand, it does not follow indiscriminately the principle of » respondeat superior « either, but instead proposes a differentiated, mediatory solution. This seems appropriate because it seeks to incorporate liability for auxiliaries into the overall system by taking into account the overall weight of the grounds for liability.

Besides the principal’s liability for his own fault, the Austrian Draft also provides specifically – following the applicable § 1315 ABGB – for a stringent, non- fault-based liability for damage caused by auxiliaries if the auxiliary is incompetent.

239See on this Galand-Carval, Comparative Report on Liability for Damage Caused by Others, in: Spier, Unification: Liability for Others 306; Giliker, JETL 2011, 39 ff.

240See F. Bydlinski, System und Prinzipien 212.

241See Ehrenzweig, System II / 12 688; likewise Iro, Besitzerwerb durch Gehilfen ( 1982 ) 206.

242On this Karner in KBB, ABGB3 § 1315 no 6 with additional references.

preneurs: in the case of special danger the principal is liable in any case for the misconduct of his Besorgungsgehilfen. It is often argued with good reason that the damage inflicted by auxiliaries is imputable to the principal if the auxiliaries’ damaging activity is linked to a source of abstract danger in the principal’s sphere of responsibility, thus giving rise to increased risk 243. In such case, the damage which occurs is not only imputable to the auxiliaries’ conduct but also to the principal’s sphere, as his source of danger has contributed to the damage or to the special extent of such. Similar applies also, however, if instead of an abstractly dangerous thing or plant there is a specific dangerous thing involved due to a defect in the principal’s sphere, which endows the auxiliaries’ activity with a special risk 244: whilst the defect-dangerousness may be less weighty than a general dangerousness 245, the principal is nonetheless additionally compromised by this defect within his sphere.

5.Directors and officers liability

6 / 126 Legal entities cannot act on their own behalf, instead they always require the help of natural persons; thus, there can be no liability for their own conduct. However, it would not be sufficient if legal entities were only liable for the misconduct of their auxiliaries within the bounds of general liability for auxiliaries ( §§ 1315 ABGB, 831 BGB ). The decisive concepts behind the liability of auxiliaries to legal entities are expressed by § 26 ABGB with its equality requirement in relation to legal entities and natural persons 246. Legal entities would after all be placed in a better position than natural persons if they were only subject to the usual liability for auxiliaries, since – in contrast to natural persons – they have in principle no liability for their own fault and therefore damage would only be imputable to them to a considerably lesser degree. For this reason, § 31 BGB stipulates that associations are liable for all their constitutionally appointed organs. There is no such express provision under Austrian law, but it is generally inferred from the equality requirement under § 26 ABGB that legal entities are liable for all fault on behalf of their organs 247.

243Cf F. Bydlinski, System und Prinzipien 213; Ehrenzweig, System II / 12, 691; Koziol, Haftpflicht­ recht II2 359 ff.

244See Wilburg, Elemente 88; likewise Jabornegg, Die Dachlawine als Haftungsproblem, ZVR 1974, 327 f.

245See on this B.C. Steininger, Verschuldenshaftung 35 ff.

246On this F. Bydlinski, Die Verantwortung juristischer Personen in der Gesellschaft, in: Götz / Sei­ fert ( eds ), Verantwortung in Wirtschaft und Gesellschaft 55 ff; Kleindieck, Deliktshaftung und Juristische Personen ( 1997 ) 231, 478.

247F. Bydlinski in: Götz / Seifert, Verantwortung 3 ff; Koziol / Welser, Bürgerliches Recht I13 ( 2006 ) 74 f; B.A. Koch in KBB, ABGB3 § 26 no 16, in each case with additional references.

of natural persons must also be made equivalent to that of legal entities according to the persuasive arguments by Ostheim 252 if such persons expand their radius of action by delegation of powers. Accordingly, the Austrian Draft now provides that the principal – be it such a legal entity or a natural person – is also comprehensively liable for the misconduct of persons who have a leading position and their own authority to make decisions and give directions within the principal’s field of activity.

248Unlike in Swiss law, see Oftinger / Stark, Haftpflichtrecht II / 14 274 f. On the earlier case law in England see Elliot, Institutional Responsibility for Employee Frauds in the Banking Sector: The Position in English Law, in: Koziol, Zurechnung ungetreuer Bankmitarbeiter ( 2004 ) 103 no 8.

249B.A. Koch in KBB, ABGB3 § 26 no 16 with additional references; further Ostheim, Organisation, Organschaft und Machthaberschaft im Deliktsrecht juristischer Personen, Gschnitzer-GedS ( 1969 ) 328 ff; from the more recent case law of the OGH cf 7 Ob 271 / 00d in JBl 2001, 525; 2 Ob 273 / 05v in RdW 2007, 725.

250Cf Reuter in MünchKomm, BGB I / 15 § 31 no 3 ff and 20 ff.

251See Aicher in Rummel, ABGB I3 § 26 no 26; Ostheim, Gschnitzer-GedS 331 ff. Cf on this also Spiro, Erfüllungsgehilfen 410 ff.

252Ostheim, Weisungsdelegation als Haftungsgrund, JBl 1969, 535; idem, Gedanken zur deliktischen Haftung für Repräsentanten anlässlich der neueren Rechtsprechung des OGH, JBl 1978, 64 ff. See further F. Bydlinski, Die deliktische Organhaftung juristischer Personen: Europäisches Rechtsgut oder überholte Theorie ? Koppensteiner-FS ( 2001 ) 569 ff ( 580 f ).

B. Defective things

6 / 129 The defective condition of things is often drawn on when it comes to imputing damage. In Austrian law, the following contexts are particularly worthy of note: the liability of the owner of a building ( § 1319 ABGB ); the keeper of a road ( § 1319 a ABGB ); the keeper of a motor vehicle ( § 9 ( 1 ) EKHG ) and product liability ( § 1 ( 1 ) PHG ). The significance of the defectiveness in relation to establishing liability varies extremely. Under German law there are corresponding rules in §§ 336, 837 BGB, § 7 ( 1 ) StVG and §1 ProdHaftG.

6 / 130 The defectiveness of a building per se does not automatically lead to the liability of the owner under § 1319 ABGB in respect of the harmful results of its defective condition. Instead there must also be objective carelessness 253 on the part of the owner, although the burden of proof is on such to show that he exercised the necessary care. As compared with the fault-based liability otherwise provided for by the ABGB, this is a very considerable tightening of liability: instead of fault, objective carelessness is enough and even in this respect the burden of proof is reversed. The particular abstract dangerousness of the building as a result of the defectiveness is often referred to as an argument in favour of this stricter standard 254.

6 / 131 Following on from the above representation of liability for defects in relation to people in the principal’s sphere, the question arises as to why in those cases the inappropriate behaviour on the part of the auxiliaries and the resulting increased danger are sufficient for establishing liability whereas here it is also required that the owner be careless. Nonetheless, it must be remembered that in the case of liability for auxiliaries there must always be the weighty accusation of unlawful behaviour on the part of the auxiliaries in order for the damage caused by them to be imputed. In the case of things, there can be no talk of such accusations and thus there will be no such corresponding serious defect. Hence, an additional criterion must be fulfilled in order to attain a corresponding weight of grounds for liability overall and this additional criterion is considered by § 1319 ABGB to be the objective carelessness of the thing’s keeper 255. Thus, there is a liability criterion to correspond with that for liability for auxiliaries and the liability system preserves its consistency.

6 / 132 As far as the distribution of the burden of proof in relation to carelessness is concerned, this would not seem to make for any additional, substantially stricter standard of liability as it already arises from the general rules: when a building

253Koziol, Haftpflichtrecht II2 400 f; B.C. Steininger, Verschuldenshaftung 92; Terlitza, Aktuelle Rechtsprechung zur Bauwerkehaftung ( § 1319 ABGB ), immolex 2001, 186.

254On this B.C. Steininger, Verschuldenshaftung 94 ff.

255This can in turn be replaced by objective carelessness of a » Besorgunsgehilfe « imputable under § 1315 ABGB, see Danzl in KBB, ABGB3 § 1319 no 5 with additional references.