The University of Texas at Austin   School of Law

Main menu:

Tort Law — § 278 BGB (Haftung für den Erfüllungsgehilfen)

Date Citation Note
10.10.1985 BGHZ 1, 383 II. Civil Senate (II ZR 68/50) = NJW 1951, 798 Claimant referred by local Medical Union for hospital treatment; doctor gave local anaesthetic without advising him to lie down; claimant lost consciousness and fell
Contract for benefit of patient (§ 328 BGB)
Hospital liable for doctor's fault under §§ 276 and 278 BGB
Where doctor started to treat and infringed common rule, by commission or omission, liable under § 823 BGB
But only doctor liable for damages for pain and suffering under § 847 BGB as hospital exculpated under § 831 BGB
§§ 328, 831 BGB
28.01.1976 BGHZ 66, 51 VIII. Civil Senate (VIII ZR 246/74) Gemüseblatt -decision = NJW 1976, 712 = VersR 1976, 589 = JZ 1976, 776 with an approving note by Krauzer Claimant (aged 14) slipped on leaf while mother buying goods at shop check out
Liability in delict and fault in concluding contract (culpa in contrahendo): contract with protective effects if party can expect duties owed to it will be extended to third party and this is discernible by other party
Narrowly defined cases but mother responsible for claimant "for better or worse"
Laches (Verwirkung) mitigates long limitation period and reversal of burden of proof (§ 282 BGB)
§§ 276, 328 BGB
03.10.1974 OLG Düsseldorf NJW 1975, 596 (8 U 161/73) = VersR 1975, 863 Claimant's son stabbed; died as surgeon at defendant’s hospital only treated one wound
Claim for loss of support
No claim under §§ 242 and 276 BGB as contract with local General Health Insurance Scheme (AOK)
Protective effect only for insured (§ 328 BGB)
No claim to performance on basis of claimant's relationship with third party
§§ 276, 328 BGB
07.12.1961 BGH JZ 1962, 570 VII.Civil Senate (VII ZR 134/60) ‘AGB’-clause
On the question whether an exemption clause contained in general conditions of business (AGB) also covers the employees of the benefited party
07.11.1960 BGHZ 33, 247 VII. Civil Senate (VII ZR 148/59) = NJW 1961, 211 = JZ 1961, 169with an approving article by Lorenz Plates from roof (built by defendant) of steelworks fell on employees at work; their insurer claimed by subrogation (§ 1542 BGB: also applying to contractual claims)
Positive breach of contract (§§ 328, 618 and 844 BGB)
Contract for benefit of third parties owed special duty by steelworks: defined circle of employees regularly active there
But contributory fault of steelworks in altering roof imputed to them under §§ 254, 334 BGB
Could only be disregarded if claim in delict
§§ 254, 328, 334, 618, 844 BGB
10.05.1951 BGHZ 2, 94 III. Civil Senate (III ZR 102/50) = NJW 1951, 596 Claimant fell and was injured on leaving hospital where wife a private patient
Even if wife made contract, duties could be owed under it to third parties
But unlike right of tenant's family to claim under lease (§ 328 BGB), no contractual duty to husband here
§§ 276, 278, 328, 538, 611 BGB
10.02.1930 RGZ 127, 218 VI. Civil Senate = JW 1930, 1720with approving note by Elster Claim by daily help of widow who employed defendant to move gas meter; claimant hurt by explosion when investigating gas smell
Defendant liable for fitter's negligence under § 278 BGB
Claimant had claim against widow for care under § 618 BGB and for defendant's faults
Widow must have intended respect for claimant's interest and defendant could see this
Contract to be construed as for benefit of third party (§§ 133, 157 and 328 BGB)
§§ 133, 157, 328, 618 BGB
08.01.1926 RGZ 112, 290 III. Civil Senate (III 32/25) Poor patients treated free at city hospital; poisoned ointment from independent chemist
Public law right to safe treatment and § 278 BGB could be applied
Adverse reaction by patients
Staff did not investigate and stop treatment or advise counter measures
Damages for pain and suffering under § 847 BGB only in tort
City not liable under § 831 BGB as no fault in providing ointment or selecting or supervising staff
But possible liability under § 823 BGB if failure to supervise, monitor and instruct and breach due to constitutional representative under §§ 31, 89 BGB
Dead patient's mother could claim under § 844 BGB as applied to public law
§§ 31, 89, 278, 823, 831, 847 BGB
03.06.1921 RGZ 102, 231 III. Civil Senate (III 470/20) Building owner had gas pipes removed by plumber; workman failed to plug pipe; tenant of floor above died and wife became ill
Claim by wife based on lease contract (for her benefit under § 328 BGB)
Owner not personally at fault as chose specialist and no duty to supervise
But liable for plumber's negligence (§ 278 BGB) as had duty to all tenants not to injure them through work on any part of premises (§§ 536 and 538 BGB)
§§ 278, 328, 536, 538 BGB
05.10.1917 RGZ 91, 21 III. Civil Senate (III 145/17) = JW 1918, 95 Claimant, railway official, was moved; daughter caught tuberculosis as house not disinfected
Duty of care in public law analogous to § 618 BGB
Claim against state for daughter's illness
Tenant (as landlord must know) intends maximum protection for household (§ 328 BGB)
Employee, given family home in connection with work, intends employer to assume same duty of protection to dependants (§ 618 BGB)
State breached duty of care
Duty on officials to report tuberculosis and disinfect
§§ 328, 618 BGB
07.06.1915 RGZ 87, 64 VI. Civil Senate (VI 7/15) = JW 1915, 1018 Taxi passengers sued tram company under Reichshaftpflichtgesetz in respect of collision; tram company now claimed indemnity from taxi driver and owner
Wife and daughter of taxi fare payer entitled as third parties under § 328 BGB to safe carriage
Taxi owner liable to all three and answerable for driver's fault under § 278 BGB
§§ 278, 328, BGB
§§ 17, 18 KrfzG
07.12.1911 RGZ 78, 239 VI. Civil Senate (VI 240/11) Linoleumrollen -decision = JW 1912, 191 Claimant bought items in defendant's store and went to look for linoleum; assistant pulled two rolls aside which fell and struck claimant and her child; purchase not made
Defendant liable for fault of assistant under § 278 BGB as he acted for defendant (§ 164; § 54 HGB)
Legal relationship in preparation for purchase so both parties owed duty to care for health and property of other
Unjust for defendant only to be liable under § 831 BGB
§ 278, 831 BGB
§§ 54, 164 HGB