Disturbed collective guilt

from Wikipedia, the free encyclopedia

A disturbed total debt exists when several are such an injury in charge that they actually considered jointly and severally liable would be liable, but one of them due to a liability privilege the injured opposite the liability would be exempted.

This raises the question of who should bear the consequences of the privilege : injured, privileged harm or non-privileged harm.

Triggering circumstances

Basically, two options for a liability privilege are conceivable: contractually agreed and statutory. In particular, the following statutory liability privileges should be considered, in which the obligation to represent is limited to the customary care, § 277 BGB :

  • Section 346, Paragraph 3, Sentence 1, No. 3 of the German Civil Code (BGB)
  • Section 347, Paragraph 1, Sentence 2 of the German Civil Code (BGB)
  • § 690 BGB Free custody
  • § 708 BGB Liability of the shareholders in the internal relationship
  • § 1359 BGB liability of the spouses to one another
  • Section 1664 Paragraph 1 BGB Liability in the parent-child relationship
  • § 2131 BGB relationship between post-inheritance and pre-inheritance
  • Section 104 (1) sentence 1 SGB ​​VII Limitation of liability of entrepreneurs
  • Section 105 (1) sentence 1 SGB VII Limitation of the liability of other persons working in the company
  • Section 115 (1) sentence 4 VVG liability of the insurer and the policyholder liable to pay compensation

Furthermore, other liability privileges are also conceivable that do not limit liability to the care taken in one's own affairs (Section 277 of the German Civil Code):

  • Section 680 privileged liability of the emergency manager

solution

The solution to this problem is controversial in the legal world. In particular, the following approaches have emerged:

The jurisprudence differentiates between contractual and legal privileges. In the case of the former, case law interprets the agreement. If the interpretation shows that the privileged person should ultimately not be liable, the privileged person is entitled to an indemnity against the injured party. Constructively, the case law initially allows the non-privileged injuring party to be fully liable in the external relationship. Internally, the non-privileged person can demand a proportionate full compensation from the privileged person. However, the privileged injuring party then has a right to exemption from the injured party in the amount of the liability privilege ( BGH NJW 1983, 624, 626) (so-called recourse carousel ). In the case of statutory liability privileges, on the other hand, case law takes the view that the injured party only has a reduced claim ( BGHZ 61, 51, 55). However, if the legal privilege follows due to a milder standard of liability (e.g. § 1664 Paragraph 1 BGB), the case law assumes that the damage cannot be attributed to the privileged person, and therefore no joint liability arises (BGHZ 103, 338, 346 ff.).

According to a widespread view in legal literature, the claim of the injured party from Section 840 (1), Section 426 of the German Civil Code ( BGB) vis-à-vis the non-privileged liable person is to be reduced by the amount of the liability privilege, since otherwise the liability privilege, if it has been contractually agreed, is fundamentally inadmissible Contract at the expense of third parties .

literature