Strict liability

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Strict liability is liability for damage resulting from a permitted hazard (e.g. operating a dangerous facility, keeping a pet). In contrast to liability for tortious acts , strict liability does not depend on the illegality of the act or the fault of the injuring party.

Basic idea

Society allows certain behaviors despite their dangerousness due to their social usefulness ( socially adequate behavior ). Who, for example, with a motor vehicle participating in road traffic, a nuclear power plant operates, a railway company maintains or products in the traffic brings, does nothing wrong, even though he knows that his behavior may be dangerous. His behavior is socially desirable. The basic idea of ​​strict liability is that those who derive benefit from abstractly dangerous actions, which society considers useful and therefore allows, should nonetheless be responsible for the damage resulting from the dangerous action or facility.

Because strict liability is only intended to cover damage resulting from the inherent risk of the dangerous action or facility, liability is for damage for which the dangerous action is (partly) the cause but does not affect the specific risk of the action (e.g. B. external risks, force majeure ), excluded. In order to determine the company-specific hazard, an evaluative consideration must be made with regard to the protective purpose of the standard .

Strict liability is the result of distributive justice ( ius distributiva ) by assigning spheres of risk : It is based on the ethical principle “Whoever benefits from the advantages should also bear the disadvantages”. In order to enable the insurability of risks, maximum liability limits have usually been set.

Special legal norms, such as those provided by the BGB, the StVG , HaftPflG , LuftVG , AtomG or the WHG , regulate strict liability almost conclusively. Nonetheless, subsidiary claims from so-called public law strict liability can arise if purely technically controlled administrative processes (e.g. traffic lights) lead to damage for those affected. The restriction is necessary in order not to inadmissibly expand claims for compensation relating to the right of expropriation or from sacrifice .



When the German Civil Code (BGB) was created, a clear distinction was not made between liability for illegal actions and liability for lawful conduct. Therefore, the animal owner's liability ( § 833 BGB), which establishes strict liability for luxury animals , is incorrect in the legal system under Title 27 for unlawful acts. The same applied to the earlier liability for game damage according to § 835 BGB old version, which was replaced by the Reichsjagdgesetz of July 3, 1934

The most important strict liability facts, which were already in force under Reich law at the time the BGB came into force, are liability for death, bodily harm or damage to health from the operation of a railway in accordance with Section 1 Liability Act and liability for death, injury to health, body or property by electricity, gases, vapors or liquids that are routed through power lines or pipeline systems ( Section 2 (1) sentence 1 HPflG).

Vehicle owner liability

Of particular practical relevance today is the liability of the vehicle owner according to Section 7 (1) StVG for death, physical injury, damage to health or property resulting from the operation of a motor vehicle within the meaning of Section 1 (2) StVG. The owner of a vehicle is liable for all personal injury and damage to property that has occurred during the operation (this means by the operation, i.e. not only on the occasion of the operation). According to the protective purpose of the standard ( normative operational term ), non- operational hazards should not be recorded, even if they arose from the operation of the vehicle . Therefore, Section 7 (2) StVG excludes the owner's liability for damage caused by force majeure. According to the prevailing opinion , a component of the company-specific risk also includes risks emanating from a stationary vehicle that is resting in a traffic-influencing manner in public traffic areas. So that the liability cases remain calculable for the motor vehicle liability insurer, the liability according to § 12 StVG is limited to a total of 5 million euros for personal injury and to 1 million euros for property damage. If the damage was caused by an autonomously driving vehicle, the respective compensation limit is doubled.

Liability of the processor of personal data

Before the application of the General Data Protection Regulation (GDPR) on May 25, 2018, both the Federal Data Protection Act (BDSG) and the state data protection laws provided strict liability for public bodies for damage resulting from inadmissible or incorrect processing of personal data . According to § 8 BDSG a. F. obliged to pay damages up to a maximum of € 130,000 regardless of fault. Some state data protection laws such as B. the Saxon Data Protection Act a. F. also contained neither an upper limit of liability nor a restriction to automated data processing and were therefore very affected-friendly.

According to the applicability of the GDPR, it is disputed whether the liability provision of Article 82 GDPR, which is applicable to private (e.g. associations) and most public bodies (e.g. registration authorities ), continues to be a strict liability or a fault liability is regulated. In the area of ​​application of the so-called JI directive (police and justice), on the other hand, the German legislator has again unequivocally regulated liability for damage that has occurred during automated data processing as strict liability in Section 83 BDSG new version.

Other strict liability issues

The manufacturer's liability for death, damage to health, personal injury or property damage due to a product defect in accordance with Section 1 of the Product Liability Act is also significant . According to Section 1 of the Environmental Liability Act, the owner of a system is liable for death, physical injury, damage to health or property caused by environmental effects caused by this system. There is also strict liability for damage caused by the operation of nuclear facilities , aircraft, the use of genetically modified seeds, and previously unknown undesirable effects of drugs, etc.

Differentiation from tortious liability

The strict liability must not be confused with the tortious liability from culpable injustice, this includes in particular the two facts of § 823 paragraph 1 and 2 BGB as well as §§ 824–826 , § 830 and § 839 BGB.

Likewise, strict liability with the facts of suspected culpability (e.g. liability for vicarious agents according to §§ 831 f. BGB or the liability of the vehicle driver according to § 18 para. 1 StVG or liability for useful pets according to § 833 sentence 2 BGB).

The situation is similar with liability for third-party negligence (e.g. liability of the debtor for the vicarious agent according to § 278 BGB or the liability of the factory owner according to § 3 HPflG). Liability for suspected fault only releases the injured party from the obligation to prove that the injured party was at fault. In the case of liability for third-party negligence, a person who has acted lawfully himself is attributed the culpable breach of duty of another.

Several perpetrators

If several people harm another, all the damaging parties are jointly and severally liable ( § 830 , § 840 , § 421 BGB). I.e. the injured party can claim the full amount from a single injuring party who is then entitled to recourse against the others . Here the problem arises as to whether the amount of recourse depends on the headcount of the injuring party or on their contribution to the cause. It is also problematic if not all the damaging parties are liable for endangerment, but instead a part is claimed for tortious acts. Are those who have caused damage due to permitted behavior to be treated on an equal footing with those who have harmed others due to prohibited behavior? Or does liability for permitted behavior subordinate to liability for illegal behavior? Is the amount of recourse in the case of a tortious perpetrator also measured according to the causal agent or should his degree of culpability be included?

In German law, the amount of recourse in the internal relationship is based, according to the prevailing opinion today, on the causation contribution ( Section 17 (1) StVG, Article 254 (1) BGB analogously). Alternatively, a particular degree of culpability can regulate his internal liability, deviating from the causal component, in the case of the criminally acting person. In the case of joint and several liability of several motor vehicle owners, the peculiarity occurs that in the internal relationship the person for whom the accident was an inevitable event is not liable. With regard to the relationship between liability for permitted risk and liability for tortious acts, the liability of the owner of a luxury animal towards tortuous offenders is always of secondary importance. According to a controversial opinion, this rule cannot be extended to other strict liability situations.


Similarly, in Austria about the liability of the registered owner or the operating contractor of railway or cable car (railway and motor insurance law), the holder of a power plant (Reich Liability Act), a nuclear plant (Nuclear Liability Act) or a plane (provisions in the Aviation Act) regulated.


There is a similar liability in Switzerland under the designation causal liability , also known as dangerous or legal liability . It is related to the trustee . Analogously, in the Swiss Code of Obligations, any person who acts on behalf of a client can be designated as a trustee. This point of view is reflected, for example, in the association standards of the construction industry. The trustee is an architect or engineer who acts as a representative of the client and who represents the client's interests. In the event of damage, this has consequences for the compensation . All parties involved in the construction, i.e. planners and entrepreneurs , are jointly and severally liable. If the builder can prove damage, he can claim this in full or in part from a joint and several liability party of his choice. In the internal relationship, the recourse order ( Art. 51 Para. 2 OR) comes into force, which is also relevant for liability insurance . This states that the damage must primarily be borne by the person who caused it through their own fault . Can the erroneous act, e.g. B. a construction worker or fitter, are not proven, a second check is made to determine whether the damage is covered by the guarantee liability of one or more entrepreneurs. If this is not the case, the strict liability of the planners (trustees) comes into play. In order to make a planner liable, fault or a corresponding regulation , as well as a causal connection with the damage, are the prerequisites. If the planning , including the duty of warning on the part of the entrepreneur, is no longer the cause of liability, the judge divides the damage among the jointly and severally liable persons at his own discretion . The burden of proof on the part of the builder lies with the parties involved in the construction. This is to prevent the client from falling victim to a "black peter game".

In Switzerland, there is causal liability for any serious accidents in nuclear power plants and other nuclear facilities: the operator is liable for the damage incurred - regardless of his fault.


In France , the Cour de Cassation has established no-fault liability as a result of the highest court rulings on the basis of Art. 1384 Para. 1 Civil Code .

See also

Individual evidence

  1. Dirk Looschelders: Law of Obligations. Special part. 8th edition. Vahlen Verlag, Munich 2013, ISBN 978-3-8006-4543-5 , p. 529.
  2. Dirk Looschelders : Law of Obligations. Special part. 8th edition. Vahlen Verlag, Munich 2013, ISBN 978-3-8006-4543-5 , p. 527 f.
  3. BGHZ 29, 163.
  4. cf. Bergt, in: Kühling / Buchner, DS-GVO / BDSG, Commentary , 2nd edition, Verlag CH Beck , Munich 2018, ISBN 978-3-406-719325 , Art. 82, Rn. 51
  5. Parliamentary document  ( page no longer available , search in web archivesInfo: The link was automatically marked as defective. Please check the link according to the instructions and then remove this notice.@1@ 2Template: Dead Link /