Liability clause

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The liability clause (also exemption clause or exclusion of liability ) is a clause in contract law that limits or even excludes liability for breaches of duty of care , warranty rights or other breaches of duty .

General

The general regulations of the BGB (§ § 241 ff. BGB) give the contracting parties considerable leeway when agreeing limitations and exclusions of liability. Every contractual relationship involves liability risks for the contractual partners . The law expects contract partners to be liable for their own fault , i.e. for intent and negligence ( Section 276 (1) BGB). It is legally permissible to limit this fault-based liability to intent (Section 276 (3) BGB). The law thus allows the exclusion of all levels of negligence in individual contracts, including even gross negligence . If a contractual partner uses third parties to perform the contract, the contractual partner is liable for their own fault as well as for their own fault in accordance with Section 278 of the German Civil Code (BGB). According to Section 278 sentence 2 of the German Civil Code (BGB), it is even possible to exclude liability for willful conduct by the vicarious agent. In both cases, there are statutory liability clauses that provide for a partial exclusion of liability. In cases specially regulated by law, there is even no- fault liability.

Contractual disclaimer

This legally stipulated distribution of liability can be changed in contracts through the exclusion of liability. An exclusion of liability is any legal intervention in the statutory liability regime in favor of the injuring party, regardless of whether it is just a limitation of liability that differs according to the degree of culpability, or just a reduction in liability that sets limits on the amount. As long as this disclaimer is provided for in contracts that are individually negotiated between the contracting parties, it is legally unobjectionable.

Terms of Service

However, if contracts are not negotiated individually, but instead one contracting party (user) uses pre-formulated contractual conditions that it provides to the other contracting party when the contract is concluded, these are general terms and conditions (GTC; Section 305 (1) BGB). In particular, standardized contracts and contract forms for everyday mass business with consumers and the so-called small print apply as terms and conditions. The legislature wanted to protect the consumer, but also partly the commercially savvy contractual partner, from inappropriately disadvantageous liability clauses , particularly because of consumer protection.

Surprise clauses

If clauses are so unusual that the contractual partner of the user does not need to reckon with them, they are considered ineffective according to § 305c BGB ( no surprise ). According to Section 306 (2) of the German Civil Code (BGB), the (more comprehensive) statutory provisions must then be applied instead of the ineffective clause. By applying the statutory provision, the limitation of liability or the exclusion of liability contained in the ineffective clause no longer applies, and the user is liable in accordance with the statutory provisions.

Inappropriate disadvantage

Unreasonable disadvantage is considered a violation of the general clause of good faith ( § 242 BGB). Inappropriately disadvantageous clauses are declared ineffective in Section 307 (1) BGB. These include clauses that

  • present unclear and incomprehensible passages of the contract (violation of the transparency principle ),
  • are not to be agreed with essential basic ideas of the legal regulation, from which one deviates or
  • Restrict essential rights or obligations that arise from the nature of the contract in such a way that the achievement of the purpose of the contract is jeopardized (Section 307 (2) BGB).

Clause prohibitions with the possibility of evaluation

In § 308 BGB - not exhaustively - 8 clauses are listed with the possibility of evaluation. The individual clauses are - seen on their own - not yet ineffective, but must be checked by courts for their effectiveness on the basis of the evaluation standard contained in § 307 BGB . They contain vague legal terms that need to be filled in and interpreted (“inappropriate”, “objectively not justified” or “reasonable”) and must first be subjected to a content check by judicial assessment. They are more difficult to interpret than the clause prohibitions without the possibility of evaluation. In particular, they are prohibited

The clauses of § 308 No. 1, 2 to 8 BGB may be used with commercial contractual partners with legal effect ( § 310 Paragraph 1 BGB).

Clause prohibitions without the possibility of evaluation

In § 309 BGB - finally - 13 clauses are listed which are immediately ineffective as soon as they appear in contracts. The prohibition catalog contains ineffective clauses without a legal assessment having to be made. They concern the indispensable cardinal obligations of the BGB such as

Section 309 of the German Civil Code forbids all of the clauses listed only in relation to non-commercial contractual partners (Section 310, Paragraph 1 of the German Civil Code).

history

In January 1906, the Reichsgericht (RG) held liability restrictions in accordance with Section 138 (1) BGB as immoral if they were based on a dominant position on the part of the user. In December 1933 it criticized the fact that a monopoly was abusing his position in order to impose unreasonable and disproportionate sacrifices on the general public or to impose unreasonable and disproportionate conditions. The disadvantages that an exclusion of liability would entail should be able to be offset by other advantages for the customer. In five out of ten cases, the RG came to the conclusion that the controversial release clauses are ineffective. A ruling by the RG declared the exclusion for own fault and the executive employee to be ineffective. Another related to a clause that excluded liability for the fault of employees . The other three decisions each dealt with total liability restrictions.

The Federal Court of Justice (BGH) first adopted and continued the principles of liability clauses developed by the Reich Court in March 1956. In doing so, however, he switched to basing the content control on the principle of good faith (§ 242 BGB) and abandoned the aspect of immorality used by the RG. In July 1973 the BGH held that liability for “cardinal obligations”, ie contractual obligations, the observance of which creates the prerequisite for correct contract fulfillment, could not be limited. The General Terms and Conditions Act introduced in April 1977 was based in large parts on the Federal Court of Justice rulings , in particular today's Section 307 (2) No. 2 of the German Civil Code (BGB) resulting from the modernization of the law of obligations of January 2002. According to this, the user may not restrict essential rights or obligations arising from the nature of the contract in such a way that the achievement of the purpose of the contract is jeopardized.

International

In international private law liability clauses ( english liability clauses ) used frequently. Thus, in the international credit transactions in the model contracts of the Association Loan Market provided that the consortium any responsibility for the adequacy ( English fairness ), accuracy ( English accuracy ) and completeness ( English complete ness ) agreements reached accepts (para. 32.8a model contract). An exclusion of liability is also required according to No. 32.8b Standard contract for the legality ( English legality ), validity ( english validity ), efficacy ( english effectiveness ) and enforceability ( English enforceablilty provided) by financing documents.

In Austria , according to Section 879 (3) of the Austrian Civil Code, a contractual provision contained in the General Terms and Conditions is void if it "grossly disadvantages a part, taking into account all the circumstances of the case". In this regard, the Supreme Court ruled in November 2012 that "non-negotiated clauses that must be retained from the user's point of view fall under the scope of Section 879 (3) ABGB, even if other contractual points have been discussed and modified at the request of the contractual partner". The Swiss federal law against unfair competition (UWG) contains in Art. 8 UWG a regulation for the content control of general terms and conditions, which since July 2012 applies exclusively to consumer contracts. According to this, individual clauses are ineffective if they deviate significantly from the applicable statutory order to the detriment of a contracting party or provide for a distribution of rights and obligations that significantly contradicts the nature of the contract. According to Art. 100 Para. 1 OR, liability for “unlawful intent or gross negligence” cannot be ruled out, which, according to Art. 101 Para. 2 OR, does not apply to auxiliary persons.

In France , exemption clauses are ineffective if, in the event of their application, they deprive the contract of any substance and impair the synallagma between performance and consideration to such an extent that the meaning of the contract is completely lost. An exemption clause is only ineffective in the exceptional case that it releases the debtor from almost all liability. Total liability restrictions that exclude the replacement of parts of the damage typical of the contract are hereby compatible.

The effectiveness of exemption clauses in English law depends crucially on whether they withstand the "test of reasonableness" of the Unfair Contract Terms Act 1977 (UCTA).

The US courts have because of unconscionability clause (Unangemessenheitsklausel) of § 2-302 Uniform Commercial Code the possibility of unreasonable contract terms to explain (UCC) invalid or to limit their effects. A clause is inappropriate if it unduly disadvantages a party or if that party had no choice but to enter into the relevant contract in this form. The scope of the regulation is not limited to particular types of clauses, but enables the entire content of the contract to be checked for each individual clause. Exclusion of liability for indirect damage is common and possible.

See also

Individual evidence

  1. ↑ Joachim Gernhuber, The debt relationship , Volume 8, 1989, p. 543.
  2. ^ Bernhard Nagel, property, delict and contract , 2003, p. 204.
  3. ^ RG, judgment of January 8, 1900, Az .: I 320/05, RGZ 62, 264, 266
  4. ^ RG, judgment of December 15, 1933, Az .: VII 292/33, RGZ 143, 24, 28
  5. ↑ RGZ 99, 107, 111
  6. ↑ RGZ 102, 396.
  7. ↑ RGZ 62, 264.
  8. ↑ RGZ 103, 82; 106, 386; 115, 218.
  9. ^ BGH, judgment of March 6, 1956, Az .: I ZR 154/54
  10. ↑ BGH NJW 1956, 1065, 1066.
  11. ↑ BGH NJW 1973, 2107, 2108.
  12. ↑ OGH, judgment of November 28, 2012, Az .: 7 Ob 93 / 12w, p. 22 f.
  13. ↑ Cour de cassation , Chambre Commerciale, May 30, 2006, D. (Dalloz Actualité) 2006, 2288
  14. ↑ Lars Leuschner , General Terms and Conditions for Contracts Between Companies - with Special Consideration of Limitations of Liability , Final Report of September 30, 2014, p. 99.
  15. ↑ Lars Leuschner, General Terms and Conditions for Contracts Between Companies - with Special Consideration of Limitations of Liability , Final Report of September 30, 2014, p. 108.
  16. ↑ Lars Leuschner, General Terms and Conditions for Contracts Between Companies - with Special Consideration of Limitations of Liability , Final Report of September 30, 2014, p. 110.