In general, non-legal parlance, the term “ helper” refers to either an unskilled worker (handyman , shop assistant , unskilled worker , etc.) or any assistant, e.g. B. an assistant doctor or a medical assistant , even if the word is now considered a bit old-fashioned, so that it is more likely to be found in older literature (older spelling: assistant ). In the story this corresponds to the Adlatus in general, the squire for the knight , the adjutant for the officer and the journeyman or apprentice for the master craftsman .
In the legal language, the term assistant also has an independent meaning that varies according to the respective context.
In German law of obligations , different types of assistants are distinguished: within existing contractual relationships the “vicarious agent”, whose behavior is attributed to the debtor, and in tort law, the “vicarious agent”, whose use can oblige to compensation. In German criminal law , the term “helper” describes someone who aids in a criminal act.
After Civil Code (BGB) has debtor a power basically only own breach of duty represented . If it stayed that way, he could evade any liability for damages by calling in other people, provided that this does not already constitute a breach of duty ( organizational fault ). That should not be the case: those who use procedures based on the division of labor must also bear their risks.of the
Therefore, liability of the debtor, whereby main and ancillary service obligations as well as mere protective obligations according to Abs. 2 BGB come into question. It also follows from the wording “ upon fulfillment” that a damaging act is only insufficient if it is fulfilled (according to the prevailing view).BGB stipulates that the debtor is responsible for "a fault [...] of the persons whom he uses to fulfill his obligation to the same extent as his own fault." Such a "vicarious agent" is someone who knows and wants to Debtor becomes active in the fulfillment of a
The wording of the law ("Fault [...] of the persons whom he [...] uses") makes it difficult to understand the regulation: The vicarious agent has no special relationship with the creditor and therefore owes him nothing. What is meant is rather that the behavior of the vicarious agent must be transferred to the debtor as if he had acted himself. This also explains why it does not depend on the diligence standard of the vicarious agent, but on that of the debtor: the best performance of the apprentice may be negligent for his circumstances, attributed to the master. This is only consistent, since the creditor has chosen (and paid) a master.
There is therefore no so-called exculpation option for the debtor: unlike the vicarious agent (see below), it is not about suspected own misconduct that could be refuted, but about strange behavior, namely that of the vicarious agent. However, the debtor can also exclude liability for willful acts of the vicarious agent in advance, 2 BGB.
Example 1: B commissions the master painter U to paint his living room. U lets his apprentice E do the work: E is vicarious agent. If E does a bad job, B's claim for damages against U for breach of an obligation to( after B does not have a contract with E!) BGB to be represented in accordance with Paragraph 1, Sentence 2. U himself did not act willfully or negligently, § 276 BGB. But the action of the E is imputed to him; if U had acted like E, there would have been negligence. Consequently, U is responsible for the breach of duty and owes compensation. If E had done a good job, but destroyed a vase of B with the ladder, the result would not have changed: E was also used by U to fulfill the protective obligations under Section 241 (2) of the German Civil Code (BGB) and owes compensation through Section 278 of the BGB.
Example 2: An airline or a hotel is also an agent of a tour operator . If there are mistakes, the tour operator must provide a remedy. He must (have) his vicarious agents checked unannounced from time to time.
A vicarious agent is someone who, with the knowledge and will of the principal, is active in his business area and is subject to instructions. It is a person appointed by someone else to perform, although there is not necessarily a contractual obligation . In addition to being bound by instructions, there is usually a social dependency, whereby no social subordination is necessary.
If the vicarious agent causes damage to a third party when performing the work, the principal is liable according to attribution : Whoever has appointed the assistant is not liable for his fault, but for his own criminal culpability, because it is assumed that he has poorly selected or supervised the assistant. There is therefore the possibility of exempting himself from the principal 's liability if he can prove that the necessary care was taken in the selection of the assistant or in the supervision of the assistant (evidence of exoneration, exculpation ).BGB. The prerequisite for this is that there is an external and internal connection between the performance and the damaging act, because the damage incidents that are only occasionally part of a performing act should not be blamed on the business owner. Unlike in the case of vicarious agents, there is no
Example 1: A instructs G to deliver goods for him. In doing so, G injures the uninvolved third party D. Then D not only owes G damages ((1) BGB), but also A who appointed the G - unless he can prove that the G was always reliable and he has also adequately monitored him.
Example 2: Spouses A assign trusted nanny B to take care of six-year-old son C. While paying attention, B breaks her leg, C runs onto the street and deliberately causes a mass accident, with property damage occurring. C is incapable of tort (BGB). According to § 831 BGB, there would now be a claim against the business owners, i.e. spouses A. Now, however, the difference to vicarious agents: Spouses A have the opportunity to provide evidence of exoneration, which means that there would be no claim against A.
The vicarious agent acts in the scope of duties of the person liable, he does not have to be entrusted with the fulfillment of an obligation. Liability for vicarious agents is independent of special contractual relationships: it is tortious liability. While § 278 BGB only extends the obligation to represent the debtor for the vicarious agent , § 831 BGB is an independent basis for claims .
In larger companies, the question of "decentralized" exoneration evidence often arises when there are chain responsibilities. It is predominantly assumed that it is sufficient to relieve the entrepreneur if he can prove that he is not at fault with regard to the selection and supervision of another manager who is performing his duty. Occasionally, however, it is also demanded that the entrepreneur must be able to relieve himself, including the performing vicarious agent. Regardless of this, however, organizational fault from Section 823 (1) of the German Civil Code (BGB) can always be considered.
Vicarious agent also vicarious agent
Despite differences, it happens that the same person can be vicarious agent and vicarious agent at the same time.
Example: E has R's cleaning company clean the windows. F is window cleaner at R. F culpably breaks a window of E. F is vicarious agent of R, since F is bound by instructions towards entrepreneur R. Company R is now liable according to both § 831 BGB and §§ 280, 278 BGB.
- § 831 BGB (liability for vicarious agents):
The vicarious agent F has unlawfully inflicted property damage on the E. Liability according to § 831 BGB expires if R can prove that he is not at fault (“exculpate himself”).
R is liable, since it is one of his protective obligations from the contract for work not to damage E's property. F breached this duty to protect (and not R), but the breach of duty is still attributed to R via § 278 BGB. F acted as vicarious agent. Liability does not expire, as Section 278 does not provide for any possibility of exculpation. BGB (compensation for breach of duty), BGB (liability of the debtor for third parties):
This double claim benefits the injured party, who, however, only receives compensation once.
Assistant in criminal law
The terms vicarious agent and procurement agent are important in compensation law . The assistant, usually an employee of the principal, is regarded as a vicarious agent if he causes damage in fulfillment of an obligation of the principal; if only on the occasion of the fulfillment , he is a procurement assistant.
Vicarious agent (§ 1313a ABGB)
The assistant in his capacity as vicarious agent fulfills a contractual service to which his principal has undertaken and thereby damages the contracting partner of his principal. According to § 1313a ABGB the contractual partner can now sue the principal directly.
Fulfillment is to be interpreted narrowly, e.g. B, A's assistant, has to transport a dangerous object into C's shop. When installing, B makes mistakes and damages the floor. In an unobserved moment, he also steals goods from C and X. With regard to the theft, B is against both. C as well as X a procurement assistant (see below) and not a vicarious agent, since the theft only occurred on the occasion of and not in fulfillment.
The vicarious agent can be an employee of the principal or an independent entrepreneur. In the latter case, there may be a vicarious agent chain, such as B .:
- Business owner
- General contractor
- Subcontractor (builder)
- individual workers
- Subcontractor (builder)
- General contractor
If the individual worker damages one of the clients, he is liable according to Section 1313a the principal (the general contractor is the principal's vicarious agent, the subcontractor is the general contractor's vicarious agent, etc.).
Procurement assistant (§ 1315 ABGB)
The assistant in his capacity as a procurement assistant does not harm a contracting partner of his principal during the performance, but a third party. The business owner is liable for him according to § 1315 ABGB; However, this for the assistant with the following properties:
- Habitually incapable : The assistant is incapable due to inadequate training or his disposition. This is indicated by multiple failures or serious misconduct. In any case, it is up to the principal to have tested the ability of his assistants.
- Knowingly dangerous : The assistant is dangerous and the owner knows about it (or negligently does not know). The danger is shown by appropriate character traits. Evidence is a criminal record or knowledge of such predispositions (kleptomania).
In terms of legal policy, procurement assistant liability is to be explained by the fact that a business owner should check his employees both professionally (certificates etc.) and character (extract from the criminal record) before hiring them.
An entrepreneur has the customer's order to restore an expensive vase. On the occasion of the fulfillment of the order, the employee / assistant knocks over another vase of the customer out of clumsiness, which is broken as a result. The entrepreneur is liable for this according to § 1313a ABGB, since his assistant violates a contractual duty of protection of the entrepreneur "in fulfillment" of the contractual relationship and the damaging act is therefore in an "inner connection" with the fulfillment. However, if he takes the opportunity to wipe out the customer, an old rival, and deliberately destroys the vase, then no contractual obligation of the entrepreneur is disregarded, the damage occurs "on the occasion" of the fulfillment and the assistant is only to the entrepreneur according to § 1315 attributed.
Recourse by the principal
If the principal according to § 1313a or acc. § 1315 obliged to pay damages, he can subsequently take recourse against the assistant. However, the Employee Liability Act (DHG) allows a reduction or waiver of the right of recourse, depending on the degree of fault:
- Resolution: no moderation possible
- Gross negligence : the court can moderate the claims of the principal (employer) depending on equity.
- slight negligence: the claim can be waived entirely.
Liability for auxiliary persons such as housemates or employees is regulated in Art. 101 OR . The auxiliary person is to be distinguished from the substitute, whose liability is based on Art. 399 OR. No auxiliary person is also the organ of a legal person. The organ adhesion is also controlled by special laws, for example, in Art. 754 OR for the organs of a corporation. Only in the case of non-contractual liability of the principal according to Art. 55 OR the possibility of exculpation or recourse against the auxiliary person.
In Lithuania the assistant (lit. can padėjėjas ) is also a legal profession mean ( judge's assistant , legal assistant , notary assistant , bailiff's assistant ). A university degree in law is required to practice (exception for notarial assistants).
In the literature
In trivial literature , comics , film and television , the heroes' assistants are also known as sidekicks , e.g. B. Dr. Watson , the Sherlock Holmes stands aside. Donald Duck is used by Dagobert Duck as an assistant for the most varied of enterprises.
- BGH, ruling v. October 15, 2013, VI ZR 124/12.
- WKO Austria, Liability for Employees ( Memento of the original from March 29, 2010 in the Internet Archive ) Info: The archive link has been inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. , accessed November 26, 2009.
- David Schneeberger: Liability for auxiliary persons July 8, 2015
- for delimitation: BGE 112 II 347
- Roland Fuhrer: Responsibility / liability of organs of legal persons (organ liability) 2007
- David Schneeberger: Liability of the business owner July 8, 2015
- Andreas Heinemann: The civil law responsibility of companies for antitrust violations 2013
- Frank Meyer: perpetration and participation ( memento of the original dated February 7, 2017 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. University of Zurich, 2014