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Tort Law — § 831 BGB (Haftung für den Verrichtungsgehilfen)

Date Citation Note
12.06.1992 BAGE 70, 337 Großer Senat (GS 1/92) = NJW 1993, 1732 = JZ 1993, 908 = NZA 1993, 547 Employer’s right to seek contribution/indemnity from employee who triggered off his liability
Employee’s immunity extended through a reliance on constitutional principles
Art. 2 I, 12 I 2, 20 I, III GG
§§ 249, 254, 276, 611 BGB
§ 45 II 1 ArbGG
07.10.1975 BGH NJW 1976, 46 VI. Civil Senate (VI ZR 43/74) = JZ 1975, 733 Public body with right to draw water claimed for pollution of water table by oil waste; petrochemical enterprise had hired contractor to dispose of oil waste
Enterprise not strictly liable for seepage under § 22 I Water Preservation Act as no act allowing it, nor § 22 II as from contractor's installation
Liability under § 823 as right to draw water absolute
Duty of care to safeguard public (Verkehrssicherungspflicht) applies to producer of industrial waste
Storing and disposal could be delegated to independent enterprise not an aide within § 831, but need for some control
Insufficient care in selection
§ 823 BGB
§ 3 AbfallbeseitigungsG vom 7.6.1972
§ 22 WHG
§§ 81, 203 PrWassG
20.04.1971 BGH NJW 1971, 1313 VI. Civil Senate (VI ZR 232/69) = VersR 1971, 741 Excavations damage gas pipeline and lead to an explosion of a house
Exoneration under 831 BGB
§§ 31, 823 BGB
06.10.1970 BGH NJW 1971, 31 VI. Civil Senate (VI ZR 56/69) Defendant told brother (who helped him in business) to fetch coal; brother collected trailer (expressly prohibited by defendant due to brother's advanced age) to avoid two journeys; took bend too fast on return and skidded, injuring claimant and damaging his car
Brother appointed to execute function and acted illegally for purpose of § 831 BGB as did not observe proper traffic practices
Direct intrinsic connection between function and injurious act
Committed in execution (not on occasion) of function
Intentional contravention of defendant's orders, so not outside functions
§ 831 BGB
18.02.1969 BGH VersR 1969, 518 VI. Civil Senate Claimant slipped on icy road when boarding bus not close enough to kerb; conductor signalled bus to start and driver caused bus to strike claimant; not sufficient to train driver; need for warnings and inspections; bus company liable under § 831.
§§ 831 BGB
30.10.1967 BGHZ 49, 19 VII. Civil Senate (VII ZR 82/65) = NJW 1968, 391 = VersR 1968, 92 Claimant lent money to assist car buyers, subject to financial report on buyer; branch manager of defendant's information agency secretly gave reports on non-existent buyers and reports which were too favourable; car dealer deceived claimant with these
Despite agency contract between them, manager was defendant's representative within § 31 BGB in relation to third parties
Manager's torts committed in execution (not on occasion) of functions allocated to him
Intentional act exceeding them may be in close objective connection with them even though violating duties
Contributory negligence could not prevent claim here
§ 31 BGB
30.06.1966 BGHZ 45, 311
VII. Civil Senate
(VII ZR 23/65)
= NJW 1966, 1807
= VersR 1966, 959
= JZ 1966, 645
Claim for accident due to defective repair of car brakes by garage Defendant who actually carried out repair liable under ß 823 BGB Other defendant (his partner in civil law) not liable under ßß 823 or 31 BGB Nor under ß 831 BGB as latter could not be limit or withdraw former¿¿s tasks §§ 831, 713 BGB
25.01.1966 BGH VersR 1966, 364 VI. Civil Senate Butcher’s driver making delivery negligently collided with stationery vehicle
Adequately selected and supervised pursuant to § 831 BGB so employer not liable
Unexpected or covert inspections, training, instructions and supervision of speed not needed as employer and representative frequently participated in trips
03.11.1964 BGH NJW 1965, 391 VI. Civil Senate (VI ZR 82/64) Claim by dependants of victim killed when given lift in lorry
Driver’s employer not liable under §§ 831 and 844 BGB
Driver ordered to carry goods and forbidden to carry persons
Lift not in exercise of function entrusted to driver
Not reasonable for victim to assume employer’s agreement in circumstances
§ 831 BGB
10.01.1958 BGH NJW 1956, 1106 VI. Civil Senate (VI ZR 45/54) Depressed patient on social security; electric shocks caused vertebral fracture
Clinic liable in contract under § 278 BGB for doctor’s culpable mistake
Claim for pain and suffering on basis of assault also under § 831 BGB
Consent only if patient aware of typical dangers or aware in outline and had accepted risk
Negligent failure to inform
Irrelevant whether he would have given consent if informed
Liability for consequences under §§ 611, 275 and 278 BGB
Doctors allotted execution of function within § 831 BGB
Clinic liable for breach of duty of guidance and control, as not mere medical issue
§§ 276, 278, 611, 823 I, 831, 847 BGB
11.04.1957 BGH NJW 1957, 499 VI. Civil Senate (VI ZR 20/56) = VersR 1957, 165 Victim injured visiting husband employed working on building; unauthorised persons prohibited from entry by notices complying with Rules for Prevention of Accidents by Builders¿ Confederation Notices fulfilled builders¿ duty to safeguard public in general (Verkehrssicherungspflicht) No claim under provision of Rules about safety measures: not intended to protect unauthorised visitors
§ 823 BGB
04.03.1957 BGHZ 24, 21 Great Civil Senate (GSZ 1/56) Straßenbahn -decision = NJW 1957, 785 = VersR 1957, 288, 517, 783 = JZ 1957, 543 See JZ 1957, 535 for an article by Wieacker Claimant boarding defendant's tram fell and was injured when it started
Claim against defendant, driver and conductor
Not fully covered by Reichshaftpflichtgesetz
Damage under § 823 I BGB must also be unlawful
Justifications, not exhaustively listed in BGB, exceptionally possible if proved by defendant, e.g., compliance with traffic regulations
But under § 831 BGB liability only depends on employee acting unlawfully and not on fault: claimant must prove employee adequately caused injury to legal interest, but employer not liable if he proves employee's conduct conformed to regulations
§§ 823, 831 BGB
11.11.1956 BGH MDR 1957, 214 VI. Civil Senate with an approving note by Esser Claimant slipped on snow on path by near house
Duty to sand path assigned by owner under lease to ground floor occupants, here a widow of 76
Owner's duty under § 823 BGB included care in selecting person to sand path and under § 831 BGB in selecting employees
But owner had duty of supervision, especially when competence and reliability not decisive factors in selection
No adequate supervision as manager had three blocks to look after
Defendant liable under §§ 823 and 831 BGB
§§ 823, 831 BGB
14.01.1954 BGHZ 12, 94 III. Civil Senate (III ZR 221/52) = NJW 1954, 913 Motor cyclist collided with one of four fallen telegraph poles at night
No general presumption of liability or strict liability of Federal Post
No liability under § 839 BGB and Art 131 of Weimar Constitution
§§ 823 and 831 BGB applied even if activity jure imperii
No liability under § 831 BGB as supervisor acted as carefully selected employee would in not sending out repair team that night
No direct § 823 BGB liability for inadequate supervision, and no negligence by employee or organ under §§ 89, 30, 31 BGB
But claim for failure to maintain
One pole, rotten or felled by slight impact from lorry, brought others down
So liability under § 823 and §§ 89, 30, 31 BGB unless proof that no organs to blame
No need to consider if § 836 BGB also applied
§§ 831, 839 BGB
27.02.1952 BGHZ 5, 321 II. Civil Senate (II ZR 78/51) = NJW 1952, 658 VersR 1952, 166 Claimant given blood transfusion by assistant doctor and contracted syphilis; donor had only had one test; Blood Donor Ordinance not followed
Contract with hospital covered transfusion despite prior contract with senior doctor not ending on admission
Hospital liable in contract for assistant doctor’s mistakes under §§ 276 and 278 BGB, and for failure of doctor in charge (its statutory representative under § 31 BGB) to bring safety rules on transfusions to doctors’ notice
His negligence made hospital liable under §§ 31, 843 I and 847 I BGB in tort, as well as contract
§§ 31, 157, 276, 278, 611, 823, 847 BGB
25.10.1951 BGHZ 4, 1 III. Civil Senate (III ZR 95/50) = NJW 1952, 418 = VersR 1952, 166 Defendant's manager asked labourer (aged 16) hired and supervised by him to transport gasoline, using a cross-bred horse; horse bolted injuring claimant Defendant had to provide general oversight of the enterprise or would be liable under § 823 I BGB
But under § 831 BGB only had to select and supervise manager
§§ 278, 823, 831 BGB