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German Tort Law

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Katharina Dyck

on 9 September 2015

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Transcript of German Tort Law

starting point: fault liability
general clause for personal liability is more restricted

exception: strict liability

German Tort Law
Main characteristics

German law is more complex and structured than other legal systems of tort law
Fault is the trigger for liability, not the damage (Rudi)
starting point: fault liability, exception: strict liability
see a disadvantage in the general clause:
liability cannot be controlled anymore
therefore in Germany there is no real 'Generalklausel' but a restricted form
Strict liability
Remember strict liability being the exception to the main rule?
most of the rules are to be found outside of BGB
only exceltion: § 833 BGB encompassing liability for keeper of a luxury animal

As Rudolf von Jhering said: " Nicht der Schaden sondern die
verpflichtet zum Schadenersatz "
It is not the damage but the
that obliges to compensate damage
Fault liability
General requirements: fault liability
1. Tatbestand:
specific requirements of the ‘general’ rules
(Grundtatbestände: § 823 I + II, § 826 BGB)
( Einzeltatbestände: § 824, § 825 and § 839 BGB)
2. Rechtswidrigkeit
(unlawfulness); unless justification
3. Verschulden
(Intention or Negligence - § 276 BGB)
4. Kausalität
5. Schaden

Strict liability
General provisions: fault liabiliry - 'Grundtatbestände'

§ 823 I BGB: wrongful conduct
infringement of a right (protected interest)
direct: sole act constitutes unlawfulness
indirect: the breach of a safety duty determines unlawfulness (accidents)
(more difficult to prove)
' are contained in 823 I (personal and physical loss)
considered to be unwritten duties established by the courts

§ 823 II BGB: breach of statute
has a protective (specific) interest

§ 826 BGB: intentional conduct against social norms of
proper behavior
intentional infliction of damage
contra bonos mores (
any conduct against legal and economic order
hard to prove, BUT dolus eventualis might be enough
Protected interests

• § 823 I BGB
physical damage
life, physical integrity, health, personal liberty and nervous shock

property rights and 'other rights'
Intellectual Property, Family rights, Personality rights
Consequential (economic) damage
Not protected: contractual rights & pure economic loss
BGH: Judge- made rights:
grant damages for pure economic loss on basis of § 823 II and § 826 BGB
(in § 826 BGB intention is required)
Liability for things
Liability for persons
Main provisions

Liability Act
§ 1 (1) HPflG
holds the operator of a railway, tramway hover track, or ski lift strictly liable
for physical an property damage
caused by the specific operational risk (
defences: contributory negligence or external cause

Air Traffic Act

§ 33
strict liability for the operator of an airplane

Road Traffic Accident Act
Protects all traffic victims
§ 7 STVG
holds keeper of a motor vehicle strictly liable
for physical and property damage to pedestrians, cyclists, passengers, and drivers
strictly liable for Betriebsgefahr
defences: contributory negligence or external cause
§ 18 STVG:
driver is liable
defences: driver acted not negligent & contributory negligence of victim
Main provisions
• few rules that exist are no strict liability rules, but provide for liability with a rebuttable presumption of negligence

§ 831 BGB
: holds the employer liable for damage caused by his employees
liability can be escaped when proven that employer did not supervise the employee sufficiently (negligently)

§ 832 BGB
imposes liability on anyone who is statutory or contractually obliged to supervise another person
e.g. parents for their children
liability can be escaped when shown that supervisory duty is sufficiently fulfilled
Thank you for your time and attention!
Full transcript