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Case:
RGZ 102, 231 III. Civil Senate (III 470/20)
Date:
03 June 1921
Judges:
Professor B. S. Markesinis
Copyright:
Tony Weir

The plaintiff and her husband lived on the third floor of a house belonging to the defendant and rented from him by the husband. On the morning of 23 October 1918 her husband was found dead and she was found unconscious in their bedroom. This was due to gas poisoning, the gas having come, according to the plaintiff, from the floor below. On the floor below the defendant was having gas replaced with electricity, and had retained G, a master plumber, to remove the gas pipes. At the end of his work on 21 October, one of G’s workmen failed to plug the gas pipe leading from the gas meter to the apartment of one Gr., a publican. The gas meter was turned off at the time, but it was turned on by Gr. on 22 October, and gas then flowed out of the unstopped pipe and filtered through the ceiling into the living quarters above, those of the plaintiff and her husband as well as those of Gr. himself.

The plaintiff claimed compensation for her own illness and for the loss she suffered through her husband’s death, the claim being based on the contract of lease which her husband had entered as well as on tortious negligence. The defendant denied the plaintiff’s assertions about the gas poisoning and contended that the accident had occurred because a gas tap in their apartment had carelessly been left on either by the plaintiff or by her husband.

Both lower courts dismissed the claim, but the plaintiff’s appeal was allowed.

Reasons

The Court of Appeal accepted the plaintiff’s version of the cause of the gas poisoning. It held, in accordance with decisions of this court (see, for example, RGZ 91, 24), that the contract of lease concluded by the plaintiff’s husband was one for the benefit of the plaintiff under § 328 BGB and that therefore the plaintiff had a personal contractual claim against the landlord for breach of his contractual duty of care under §§ 536, 538 BGB. It is held, correctly, that the landlord was contractually bound to each of his tenants not to damage them by works being effected on the premises and to indemnify them for any harm due to culpable breach of his duty. The court nevertheless rejected the plaintiff’s claim because the defendant was neither personally at fault nor liable for the negligence of an agent for performance (§ 278 BGB). There was no personal fault in the defendant because the person to whom he had entrusted the work, the master plumber G, was a specialist. He had thereby fulfilled his duty of care to see that the works were carried out properly and in a manner not involving risk to the occupants of the house, all the more so since what was involved was a simple and easy task which the chosen specialist could be expected to carry out properly. It was not common practice for the landlord himself to supervise specialist tasks which he was in no position to evaluate, nor to appoint a representative to do so for him. It therefore could not be expected that the defendant should supervise G’s work. Nor was the defendant liable under § 278 BGB, because the work being done on the gas pipes was not in execution of any duty owed by the defendant to the plaintiff, but of a duty owed by the defendant to the occupant of the lower apartment; G and his workmen could therefore not be regarded as the defendant’s agents for performance vis-à-vis the plaintiff.

The appellant criticizes the Court of Appeal’s opinion of both points. Criticism of the finding that the defendant was not personally at fault is without merit. In the case of work such as was here entrusted to the master plumber G, the defendant was under no duty, either personally or through a clerk of works, to see that the work was being carried out properly or to check it as soon as it had been completed. A subsequent inspection, perhaps in the defendant’s own interest, would not have prevented the accident.

On the other hand, the appellant is right to say that there has been misapplication of §§ 278, 536, 538 BGB. The Court of Appeal itself recognized that the landlord has a contractual duty to all his tenants not to injure them by work being done on the premises. This duty stems directly from the basic duty imposed on the landlord by § 536 BGB, which is not simply to make the rented property available at the outset of the lease in a condition suitable for use in accordance with the contract, but also to maintain it in this condition for the duration of the lease. But this is not a duty merely to avoid doing harmful work on the premises, it is a positive duty to see that the rented property is maintained in a condition suitable for contractual use. It therefore includes the duty to take care that the tenant’s use of the premises is not unacceptably affected by any work being done on the premises, including the work done in parts of the building other than those demised to the tenant for his exclusive use. If the landlord allows work to be done in the house which runs the risk of affecting the tenanted premises, he is bound under the contract of lease so to effect these works that this danger is averted, regardless of where in the house or why the work is being done. The landlord of a house whose ground floor needed strengthening or whose gas or water supply was defective at any point would clearly be contractually bound as against tenants anywhere on the premises who were endangered thereby to do any repairs properly. If he entrusts the work to someone else he is using that other person for the performance of his duty towards all such tenants: he must therefore answer for his assistant’s fault under § 278 BGB as if it were his own. The same is true if the danger arises from works undertaken in rooms rented to others. For example, suppose a supporting wall on the ground floor is to be removed in order to enlarge the window. The landlord’s contractual duty to do these works is owed only to the tenant of the ground floor and not to other tenants, but if he actually engages on the work, he owes to all the tenants in the house a contractual duty so to manage it that the rooms they rent are not adversely affected. To this extent, therefore the workmen whom the landlord employs for modification of the building are his agents for performance under § 278 BGB not only as against the tenants of the ground floor but also as against all tenants whose rooms could be affected by the work of reconstruction. So here, taking the plaintiff’s assertions as true, although the defendant was indeed under no contractual duty towards the plaintiff to replace the gas pipes by electric wiring, he was responsible to the plaintiff and to the other tenants in the house for seeing that the gas pipes were removed without risk of gas flowing into their rooms. Those persons to whom the defendant entrusted the removal of the gas pipes were consequently his agents for performance vis-à-vis the plaintiff too.

Such an application of § 278 BGB in respect of the landlord’s obligation to maintain the leased property so that it remains fit for contractual use is correlative to the tenant’s liability for his employees arising from his duty to treat the leased property properly: those whom the tenant engages in the business he runs on the tenanted premises are his agents for performance of his duty to treat the premises properly, even if he owes the landlord no duty whatever to run the business in which those persons are employed (see RGZ 84, 222) . . .

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