Put artis

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Lege artis ("according to the rules of art", from Latin lex, legis , "law" and Latin ars, artis , "art"; English state of the art ) is the legal principle in liability law , according to which a contractual obligation to perform according to the state of the art Science , the recognized rules of technology , social norms or legal norms as well as using physical and mental abilities , skills and knowledge .

General

There are areas of expertise and professions that are subject to rapid change. This includes in particular medicine , technology , construction , law or art . Anyone who wishes to use their services through a contract can legally expect that the service debtor delivers a quality that is free from legal and material defects and also complies with the current rules of the relevant specialist area. While material and legal defects are comparatively easy to discover, the incorrect application of the current rules of a subject is more difficult to prove.

Medical science and medical practice set out to try whether and to what extent the medical act certain rules can be subjected, if ignored, from a medical standpoint as a violation of generally accepted rules and therefore legally as a violation of the duty of care a liability can trigger. Today, violations of generally accepted rules are mostly associated with medicine, but there are a large number of specialist areas that also have to meet the requirements of the “lege artis” principle.

history

The Constitutio Criminalis Carolina , which dates from 1532, threatened in Article 134 a punishment for the doctor who "kills someone with seyner arzney out of indolence or ineptitude and yet irresistibly ...". It was thus considered a preliminary stage of medical malpractice as the starting point for a violation of recognized medical rules. The physician Rudolf Virchow coined in 1870 the concept of malpractice as "violation of the rules of the art of healing as a result of a lack of due attention and caution." According to Ferdinand von Neureiter , the term “malpractice” coined by Virchow relates to violations of generally recognized rules of medical science in court practice, i.e. “such oversights that are usually based on ignorance or insufficient knowledge, less on inability or even on sheer inattention”. As early as March 1898, the Reichsgericht (RG) in the building industry assumed that "... the site manager must observe the rules of art and craft". In February 1934, the RG expressed no concerns "that a violation of the recognized rules of medical art is regularly the fault of the agent ...". In October 1934 it called this violation a “malpractice”.

Generally accepted rules of art

The interpretation of the phrase “generally accepted rules of art” is extensive. The rules of a specific subject area must be generally recognized , i.e. by a majority of experts . This is not the case if the views of the specialist groups differ and the rules have not yet found general acceptance in science. Recognition means accepting these rules. Rules are all established knowledge and statements and guidelines derived from them . Finally, art describes the subject, the rules of which may be subject to more or less major changes. The respective level of knowledge cannot be precisely determined. Recognized technical rules are those principles and solutions that have been tried and tested in practice and have prevailed among the majority of practitioners.

The indefinite legal term “recognized rules of technology” occurs frequently in German law, for example in Section 319 of the Criminal Code in the context of building hazards , Section 50 (4), Section 51 (2), Section 60 (1), Section 62 ( 2 ) 2 Water Resources Act or Section 2 Paragraph 1 HaftPflG . It must be distinguished from the “state of the art” in environmental law ( Section 3 (1) no. 1 BImSchG ) and the “state of the art” in nuclear law ( Section 4 (2) no. 3 AtG ) and has different requirements. "State of the art" is, according to Section 3 (6) of the BImSchG, the "state of development of progressive processes, facilities or operating methods that make the practical suitability of a measure ... appear certain".

Types of contracts

The definition of a service based on its provision "according to the rules of art" ("lege artis") can occur in service and work contracts .

Service contract

The service contracts include, in particular, the employment contract , treatment contract , mandate contract with a lawyer or the telecommunications contract (including mobile phone contracts ).

Among other things, the work content and work performance of the employee are regulated in the employment contract. In doing so, the employer is obliged to issue work instructions through his right of instruction and direction that take into account the latest state of science and technology and thus support the employee in fulfilling his work task . A pronounced professional ethos and high standards of activities guarantee work performance at the highest level of research or professional skill (“lege artis”).

The treatment contract between doctor and patient has been a service contract since the judgment of the Federal Court of Justice (BGH) in April 1987, so that the doctor does not have to promise a cure , but only conscientious and careful treatment according to the rules of medical art. The doctor has to observe the recognized rules of medical science, whereby he must be informed about the latest state of medicine in his field. Since February 2013, the submission of the treatment contract to the service contract law has also been legally codified by § 630a BGB . In accordance with Section 630a (2) of the German Civil Code (BGB), treatment must take place in accordance with the generally recognized professional standards that existed at the time of treatment, unless otherwise agreed. In medicine, it is criticized that the Lege-artis rule inhibits medical progress, for example when newly developed treatment methods are to be used or there are no established therapies, which means that there is always a high liability risk for the medical professional .

Even the lawyer contract is a service contract (more precisely, a management service agreement on services; § § 675 , § 611 BGB), because the lawyer is committed only to the conscientious legal advice and diligent legal representation , but not to the process win. When exercising a mandate, a lawyer must in principle be guided by decisions of the highest court , which are of crucial importance for legal reality. This also applies to tax advisors or auditors .

Work contract

The contracts for work and services mainly include the architect contract , building contract or artist contract . The work contract generally obliges to a certain success according to § 631 paragraph 1 BGB . According to Section 633 (2) BGB, the work is free from material defects if it is suitable for the use required by the contract, otherwise for normal use and has a quality that is customary for works of the same type and that the customer according to Art of the work can expect. In the case of a work contract, the manufacturer is responsible for delivering the agreed quality and quality, and he must deliver the work according to the rules of the art, i.e. observe the relevant (technical) regulations.

An architect or engineering contract obliges the entrepreneur to provide the services that are required according to the respective status of planning and execution of the building or the outdoor area in order to achieve the planning and monitoring objectives agreed between the parties. In particular, the architect has to provide technically and economically flawless planning which, in accordance with the state of the art, is aimed at realizing the planning in a building free of defects.

In the construction contract, the building must comply with the "recognized rules of technology and architecture". This is understood to mean “technical rules for the design and execution of structural systems that are recognized in science as theoretically correct and are established, and in particular are well known and based on the group of technicians who are relevant to the application of the relevant rules and who are trained according to the latest state of knowledge ongoing practical experience are recognized as technically suitable, appropriate and necessary ”. In the case of the BGB work contract, the recognized rules of technology must also be used. According to Section 13, Paragraph 1, Clause 2 VOB / B , the performance of the construction contract is free of material defects at the time of construction acceptance if it has the agreed quality and corresponds to the recognized rules of technology. The recognized rules of technology are specified in various technical standards and regulations. Important regulations are about

However, a DIN standard as a recognized rule of architecture can also lose its validity because it has become obsolete due to technical developments.

The performance contract ( concert , artist , sport , showman , theater ) is a contract between the holder of the performance rights and the organizer , which also includes elements of a work contract. The artist owes success if he is committed to a program that can be determined according to objective criteria . If an orchestral program provides for a complete opera, but only two of the three acts are played, the organizer can demand a reduction in price from the artist in accordance with Section 638 (1) BGB. Success does not mean artistic success in the sense of applause or positive criticism , but only the performance of a concert or artistic performance as such. The artist must master the recognized rules of art and deliver a customary work according to his artistic characteristics and qualifications .

meaning

If the generally recognized rules of the art are not applied, then there is poor performance. The client , customer , patient , client or viewer can expect a certain service that has been contractually guaranteed. If the service actually provided does not correspond to the contractually guaranteed “de lege artis”, the service debtor is liable for damages in accordance with Section 280 (1) BGB for breach of duty . The building risk is a criminal offense and can even result in criminal prosecution. The legal sanctioning of poor performance aims to force the service debtor to maintain a certain quality standard through quality assurance and to offer it permanently, while the contractual partner is enabled through consumer protection to legally enforce its quality standards. If the quality level expected by the customer is also delivered with regard to the generally recognized rules of the art, customer satisfaction results .

See also

Individual evidence

  1. ^ Friedrich Baumbusch / E. Schindler / Theodor Schultheis / Winfried Karl Gottfried Vahlensieck, The urological assessment and documentation , 1965, p. 366
  2. ↑ German Journal for All Medicine No. 20, 1993, pp. 1666 ff.
  3. ↑ Rudolf Virchow, Malpractice of the Doctors, files of the Reichstag of the North German Confederation , Annex 3 to No. 5, 1870, pp. XII-XV
  4. ↑ Ferdinand von Neureiter / Friedrich Pietrusky / Eduard Schütt, Concise Dictionary of Forensic Medicine and Scientific Criminology , 1940, p. 17
  5. ^ RG, judgment of March 31, 1898, RGZ 46, 209
  6. ^ RG, judgment of February 8, 1934
  7. ^ RG, judgment of October 12, 1934
  8. ^ BGH, judgment of November 27, 1952, Az .: VI ZR 25/52
  9. ↑ Hans Hellner , The malpractice problem from a surgical point of view , in German Medical Wochenschrift No. 83, 1958, pp. 2113 ff.
  10. ^ RG, judgment of October 11, 1910, Az .: IV 664/10
  11. ↑ BVerwG, judgment of August 4, 1992, Az .: 4 B 150/92
  12. ↑ Thomas Haipeter, Employees Revisited , 2016, p. 184
  13. ^ BGH, judgment of April 28, 1987, Az .: VI ZR 171/86
  14. ↑ Kurt Schellhammer, Law of Obligations according to Claim Basis , 2011, p. 266
  15. ^ BGH, judgment of February 17, 1956, Az .: VI ZR 248/54
  16. ^ BGH, judgment of September 27, 1977, Az .: VI ZR 162/76
  17. ↑ Brigitte Tag, The physical injury offense in the field of tension between patient autonomy and Lex artis , Springer Verlag, 2000, ISBN 978-3-540-41389-9
  18. ↑ BGH WM 1993, 2130
  19. ↑ Dieter Wagner, Praxishandbuch Personalmanagement , 2015, p. 169
  20. ↑ Horst Locher / Wolfgang Koeble / Werner Frik, Commentary on HOAI , 2013, Introduction Rn. 44 and 111
  21. ↑ OLG Düsseldorf , BauR 1996, p. 287
  22. ↑ OLG Hamm , BauR 1992, p. 262
  23. ↑ BT-Drs. 14/6040 BT-Drucksache 14/6040 of May 14, 2001, draft of a law to modernize the law of obligations , p. 261
  24. ↑ Tobias Dittmar, The concept of deficiency in the light of the recognized rules of technology , in: BTGA Almanach 2014, p. 104 f.
  25. ^ BGH, judgment of June 14, 2007, Az .: VII ZR 45/06
  26. ↑ Otto Palandt / Hartmut Sprau, BGB Commentary , 74th edition, 2014, before Section 631 marginal no. 29
  27. ↑ BGHZ 13, 115
  28. ^ Higher Regional Court Munich NJW-RR 2005, 616
  29. ^ Hermann Josef Fischer / Steven A. Reich, The artist and his right , 2006, § 10 Rn. 64
  30. ↑ Otto Palandt / Hartmut Sprau, BGB commentary , 74th edition, 2014, § 631 Rn. 12