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 |