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Case:
BGH ZIP 2001, 379 VI ZR 345/99 (Oberlandesgericht Frankfurt-am-Main)
Date:
12 December 2000
Translated by:
Mr Raymond Youngs
Copyright:
Professor B. S. Markesinis

Facts:

The claimant, who was born on the 31st August 1982, claims compensation on the ground that his milk teeth "bite" was destroyed. This was because a child tea product made by the former first defendant had been supplied to him for the first two years of his life by a plastic feeding bottle which this defendant sold with the tea without the necessary warnings.

In 1985 dentists told the claimant's mother that his tooth damage could be due to the tea. In the autumn of 1993 she was referred to the relevant local health insurance scheme about the possibility of a claim. She then took legal advice.

The claim, lodged on the 4th January 1996, sought compensation from the former first defendant and from its leading employees sued as the second to the sixth defendants. The claimant considers these latter defendants are jointly responsible (partly as members of the board of directors and partly as authorised signatories, departmental managers etc) for the development, production and sale of the children's tea and for consequential breach of duties in liability law to consumers.

The Landgericht rejected the claim on the basis of a limitation defence. The claimant's appeal was unsuccessful. He withdrew his appeal in law against the first defendant, but is pursuing it against the second to sixth defendants.

Grounds:

I. The appeal court considers - in agreement with the Landgericht - that the claims made in the statement of claim are time barred. The three-year limitation period in § 852 of the BGB had begun to run from the 1st January 1986 at the latest. The claims had therefore become time barred on the 31st December 1988 as no interruption of the limitation period took place within the permitted time.

The claimant's mother - according to the relevant indications given by the dentists giving treatment - had had the necessary knowledge, at any rate by the end of 1985, of the fact that the consumption of children's tea and the manner of its administration had caused the tooth damage. Since this time it had also been possible for her to know that the first defendant as manufacturer of the tea and marketer of the feeding bottles fell to be considered as a tortfeasor. But in fact the mother was completely unaware that the claimant, as a person suffering harm, could have looked to the defendants for compensation. However, this circumstance did not prevent the running of the limitation period. This was because the running of the period would not be delayed until the time when the person suffering harm or his legal representative had legal knowledge that he had a claim to compensation. If, on the other hand, he had no knowledge at all of a possible claim to compensation and if this lack of knowledge formed the hindrance to obtaining knowledge of the tortfeasors, the running of the limitation period would begin with the knowledge of the harm...

2. The judgment of the appeal court (which is no longer the object of the appeal in law proceedings) that possible claims by the claimant against the first defendant as producer and seller of the children's tea and the feeding bottle were time barred has no legal effects on the claims which now still remain against the other defendants. The appeal in law correctly alludes to the fact that the prerequisites for the running of the limitation period and the expiry of the limitation period are to be tested independently for each defendant.

a) The beginning of the running of the limitation period is dependent, according to § 852 (1) of the BGB, on the knowledge of the person suffering harm not only of the harm but also of the identity of the person obliged to compensate. If several people are to be considered as tortfeasors, the beginning of the limitation period is to be determined as against each of these persons who are possibly liable according to the point in time when the person suffering harm has obtained knowledge of the identity of the tortfeasor concerned (references omitted). Accordingly the limitation period can, in relation to several persons obliged to compensate, begin and end at different points in time, even if they are simultaneously responsible for the same harm arising out of the same event.

b) Contrary to the view of the reply to the appeal in law, the position is no different in this respect when the several persons coming under consideration as responsible under a duty to compensate are on the one hand an undertaking (carried on in the form of a legal person) and on the other hand persons who are its organs or (managing) employees, for whom the undertaking has to assume liability under § 31 of the BGB or § 831 of the BGB. The employee liable according to § 823 (1) of the BGB and the proprietor of the business who is responsible for him according to § 831 of the BGB are joint debtors to the person suffering the harm (§ 840 of the BGB) just as much as the legal person liable under § 31 of the BGB and its directly responsible organ in tort are (reference omitted). Consequently a claim can only become time barred against the joint debtor as to whom each of the prerequisites are established (§ 425 (2) of the BGB). The personal responsibility of the person who acts directly tortiously exists not only in the case of § 831 of the BGB but also in the framework of liability for organs under § 31 of the BGB as separate and independent liability beside that of the undertaking (see for the case of the director of a company [references omitted]); here also automatic parallel treatment of the prerequisites for limitation does not come into consideration.

3. The limitation period for possible claims by the claimant against the second to sixth defendants could therefore only begin to run from the point in time from which the claimant (or his mother who was entitled to care for him) had the necessary knowledge in relation to the identity of these persons who were possibly liable to compensate. He or she would therefore have to know their names, addresses and the nature of their work in the business in each case (references omitted). Even for the organ of a legal person, responsibility in tort law for injury to the legal interests of third parties can in fact depend to a considerable extent on the division of competences and work in the business (references omitted).

The appeal court made no findings at all on the question of the date from which the claimant's mother had the knowledge about the second to sixth defendants which was necessary in this respect. There is nothing evident which indicates that this could have been the case earlier than three years before the filing of the claim.

4. It has to admitted in favour of the reply to the appeal in law that exceptionally - following the legal concept of § 162 of the BGB - the limitation period can also begin in the sense of § 852 (1) of the BGB if the person suffering harm did not positively possess a state of knowledge which would trigger the running of the period, but certainly had the opportunity of obtaining the necessary knowledge in a reasonable way and without significant difficulty (references omitted). But this only applies when the person suffering harm effectively closes his eyes in the face of unavoidable knowledge and neglects to take advantage of a more or less obvious opportunity for knowledge so that an appeal to lack of knowledge appears to be mere formalism because any other person in the position of the person who has suffered harm would have had the knowledge under the same concrete circumstances (references omitted).

It is not possible to assume such a case, not even in relation to those defendants who at the point in time of the harm were not only managing employees but members of the board of directors of the former first defendant. No grounds at all can be deduced from the findings which have been made for saying that the claimant's mother could at any time have discovered the names, addresses and areas of competence of the members of the board of directors coming under consideration for liability in the present context in a manner so simple and obvious to everyone that reliance on the absence of knowledge could appear to be impermissible. This would apply especially in relation to those defendants who - without being members of the board of directors - were engaged in the production and sale of tea products as departmental managers or authorised signatories.

5. It is to be deduced from the judgment on appeal that the appeal court did not consider findings about the actual knowledge of the identity of the second to sixth defendants as persons under a duty to compensate to be necessary on legal grounds, because the claimant's mother simply did not know that the claimant as the person suffering harm could have looked to these defendants for compensation. The appeal court takes the view that the limitation period would begin to run immediately on knowledge of the harm when the person suffering harm had no knowledge at all of a possible claim to compensation and this absence of knowledge constituted the hindrance to obtaining knowledge of the persons causing harm. The appeal in law successfully contests these arguments.

The view of the appeal court cannot be supported by the decision of the Bundesgerichtshof of the 17th March 1966 (reference omitted) cited in the appeal judgment on this issue. That judgment takes into account the fact that in the area of § 852 of the BGB also the legal maxim that absence of knowledge of the law always and in all circumstances causes prejudice does not apply without exception. In particular it does not apply when the absence of knowledge of legal maxims and principles forms the hindrance to knowing the identity of the person obliged to compensate. It would admittedly work to the disadvantage of the person suffering harm if the identity of the person obliged to compensate was actually known and nothing was lacking for the making of the claim to compensation other than the knowledge of the legal norm which permitted proceeding against the tortfeasor. From these principles, it follows for the present case:

If the claimant's mother had actually known the names and addresses of the second to sixth defendants and their business positions, it would not have been relevant to the running of the limitation period that she had refrained from making a claim to compensation through lack of legal knowledge. But so long as she did not know the names, addresses and positions of these defendants (and this has to be assumed here, in the absence of contrary findings for the period up to three years before the lodging of the claim), the situation is still that the limitation period did not begin to run through lack of the required knowledge of the identity of the person causing the harm. In such a state of affairs it has no legal effect whether or not the person suffering the harm had the necessary legal knowledge for the pursuit of possible claims. § 852 (1) of the BGB makes the beginning of the limitation period dependent on the required knowledge of the facts; if this is lacking, no hypothetical conclusions can be drawn as to how the person suffering the harm - on whatever grounds - would have behaved if he had had the knowledge.

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