Breach of duty of supervision (BGB)

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Warning sign that humorously wants to draw attention to the current duty of supervision: "Unattended children are sold to the circus"

A breach of duty of supervision regulates the attribution of an act of a third party to a supervisor if this person has not sufficiently fulfilled his duty of supervision. This gives rise to - possibly in addition to criminal sanctions - claims under private law, especially claims for damages . The main legal source for claims under private law is § 832 BGB . There, the breach of duty of supervision is regulated under the aspect that the person subject to supervision may (also) be liable for unauthorized damaging actions in addition to or instead of the damaging supervised person. In this respect, the regulation is systematically correct following the provision of the practically more important § 831 BGB, which also deals with the liability for unauthorized actions of others, namely the liability of the "principal" (e.g. and above all employer) for unauthorized acts of his “ vicarious agents ” (e.g. and above all employees ). One can summarize the regulations of § 831 , § 832 BGB under the guiding principle that here claims for damages are constituted against persons who are responsible for others.

The legal problem of the violation of supervisory duties is not exhausted in the regulation of § 832 BGB. It also affects - and perhaps even primarily - the relationship between the supervised and the "overseer". The fact that the supervised party can also have claims against the supervisor due to a breach of supervisory duties already follows from the general law of obligations , according to which a debtor who breaches his duty to the creditor is obliged to pay compensation in accordance with Section 280 (1) BGB. Section 280 (1) of the German Civil Code (BGB) applies to every contractual relationship , regardless of whether it is based on a legal transaction (contractual) or a legal one.

The following presentation is limited to the regulation of § 832 BGB as the special regulation in the BGB for the liability of the person subject to supervision in relation to the third party harmed by the person being supervised, since the general legal rules for the non-fulfillment of the legal relationship between the person subject to supervision and the person being supervised Obligations apply that are dealt with elsewhere (performance disruptions, debtor liability due to breach of duty).

Systematic overview

The breach of duty of supervision is regulated in accordance with what was said in the introduction, especially in Section 832 of the German Civil Code, the provision on the “liability of the person subject to supervision” - this has been the section's official heading since 2002. According to this, the person who is legally obliged to supervise a person who is in need of supervision because of their minority or mental or physical condition is obliged to pay damages if this person unlawfully harms a third party ( Section 832 (1) sentence 1 BGB). In accordance with Section 832 (1) sentence 2 of the German Civil Code, however, the obligation to pay compensation does not apply if the person subject to supervision fulfills his / her duty of supervision or if the damage would have occurred even if the supervision had been properly carried out. The statutory supervisory duties not only serve to protect the minor from harm that may occur to him or her at his own expense, but also to prevent him from encroaching on the rights of third parties due to age-related carelessness or immaturity, which even an adult cannot likely to hurt.

Burden of proof

With this arrangement of liability for breaches of duty of supervision, the legislature has also made a burden of proof regulation . The damaging act of the person to be supervised basically triggers liability. The person subject to supervision can, however, avoid liability if he fulfills his duty of supervision or if the damage would have occurred even if he had not breached the duty of supervision. To a certain extent, it is legally presumed that the damage caused by the supervised person is due to a breach of the duty of supervision. However, this presumption can be refuted by the person subject to supervision.

Conditions of liability

The prerequisite for liability in accordance with Section 832 (1) of the German Civil Code (BGB) is that there is a statutory obligation to supervise , such as B. and especially the parents with regard to their children under parental care according to § 1631 BGB. Section 832 (2) of the German Civil Code extends liability to those who are contractually obliged to supervise.

No regulation in the internal relationship

The regulation of § 832 BGB does not exhaust the topic of the violation of the supervisory duty according to the BGB. For example, § 832 BGB does not regulate the claims of the supervised party against the violator of the supervisory duty, the heading of § 832 BGB is therefore too broad. These can also exist according to other regulations. Rather, the provision grants a “third party” to whom the supervised person has caused damage a claim against the person subject to supervision. In addition, the injured party may have rights against the injured party.

Competition

Any claims of the injured party against the injuring party and against the person responsible for supervision coexist. According to Section 840 (1) of the BGB is a so-called joint debt , in which the obligee has a claim against all joint debtors, but he can only demand the performance owed to him once. In the so-called internal relationship of the joint and several debtors to one another, the damaging party is solely obliged ( Section 840 (2) BGB). In this respect, liability for breach of duty of supervision in the internal relationship of the joint and several debtors is subordinate; the damage is to be borne internally by the injuring party alone.

Legal political criticism

In terms of legal policy , the subordination of the liability of the person who violates the supervisory obligation in relation to the perpetrator is problematic, since the supervisory obligation also exists in the interests of the supervised party, who is to be protected from harm by the supervision. In the legal literature there is therefore criticism of the blanket regulation of the “priority” of the supervised person's liability.

Individual evidence

  1. Therefore, parents and U. for internet crimes of their children: OLG Cologne, judgment of 23 March 2012, Az. 6 U 67/11, full text