Liability (law)

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Liability is a differently used legal term that describes the obligation of the debtor to perform towards his creditor , the responsibility of a legal entity for damage incurred or, in the narrower sense, the subjection of the debtor's assets to the access of the obligee.


Few legal terms are used in such diverse areas of law as the term liability. It comes from the Middle High German haftunge 'arrest, confiscation, guarantee', which goes back to the old high German haftunga . Today the term is derived from the general term sticking in the sense of 'sticking, sticking'. This relationship is also evident in the criminal procedural terms arrest ( arrest warrant ) and arrest . In criminal law, “liability” is used for B. spoken for manslaughter or theft , if the requirements for enforcing the state criminal claim are met. In these cases it is about being subject to state power .

The term liability is ambiguous and varies depending on the legal area. In many regulations it is synonymous with debt as the debtor's obligation to perform towards his creditor (e.g. § § 241 Paragraph 1 BGB , § 276 , § 459 BGB); “Whoever owes, is also liable”. A distinction must be made between this objective liability and the liability norms that require the wrongdoer to pass on a claim for damages. This includes liability for damages from the law of enrichment . A second reason for liability extends to toleration of foreclosure against the debtor's assets. The narrow third variant is pure liability ( liens ).

The term liability must always provide precise information about the subjects and objects of liability , i.e. who is responsible for the liability and which assets are to be used for this. Today, the term liability is mainly understood to mean that the debtor (subject of liability) with all of his assets (subject of liability) is responsible for the debt in the foreclosure.


From the many areas of law that deal with questions of liability, the most important are to be selected.

civil right

The Civil Law knows the liability in the form of a dualism of two different bases of liability, either for the fulfillment of having to vouch personally an obligation or the assets in contractual liability or to be non-contractually liable to pay damages.

Contractual Liability

The contractual liability is based on the concluded contract. This regulates the obligation to provide a replacement service for the primarily owed or expected contractual service and it is agreed who has violated which contractual obligations and when and what legal consequences are associated with this. In the case of a purchase contract , the legal consequence - in addition to supplementary performance , withdrawal and price reduction - is the obligation to pay compensation according to Section 280 (1) BGB. It presupposes that the debtor to the breach represented has. A contractual obligation ( Section 241 (1) BGB) creates a claim ( Section 194 (1) BGB) on the part of the obligee, ie “the right to demand that another act or omit”. This creditor claim can only be realized if the legal subject against which the claim is made is also liable for its debt, i.e. H. the claim against his property can be enforced and thus enforced (see enforcement , insolvency proceedings ).

The statutory apportionment of liability may in general terms and conditions by (GTC) limitations on liability and liability clauses be limited or excluded. Limitations of liability are the contractually agreed or legally stipulated reductions in the reasons for liability or the scope of liability of a contracting party. The reduction takes place compared to the distribution of liability, which the law would provide for the implementation of the respective contract, if no deviating agreements were made. If the user tries to reduce or even exclude his actually intended legal liability in the terms and conditions by means of liability clauses, § § 305 ff. BGB apply . If the terms and conditions have become part of the contract in accordance with Section 305 (2) BGB, individual provisions of the terms and conditions may be ineffective. This is the case in the case of unreasonable discrimination against the consumer ( Section 307, Paragraph 1 of the German Civil Code), of clauses with a rating option ( Section 308 of the German Civil Code) and no rating option ( Section 309 of the German Civil Code).

Tort Liability

In the absence of a contract, there are a multitude of tortious liabilities in the area of ​​tort. You deal with the question of who has to pay compensation for the occurrence of damage and what extent this compensation should have. This damage can occur as personal injury or property damage. In particular, someone is liable according to § 823 BGB if he culpably and unlawfully violates the absolute rights of life , body , health , freedom and property of another. Primary financial losses, on the other hand, are only protected by Section 823 (2) BGB (violation of a protective law ) and Section 826 BGB (violation of good morals ). A large number of cases must be subordinated to these general clauses , such as strict producer liability.

The strict liability - which does not require a contract - results from damage from a permitted risk , whereby neither illegality nor fault on the part of the injuring party are required. The injuring party need not be at fault here if he creates other sources of danger for his own benefit (e.g. operating a motor vehicle according to Section 7 of the Road Traffic Act or animal keepers according to Section 833 of the German Civil Code). In the case of product liability - which also does not require a contract - the manufacturer is liable for damage suffered by the consumer as a result of a defective product . Producer liability is based on Section 823 (1) of the German Civil Code (BGB), while product liability results from the Product Liability Act and special laws ( Section 84 Medicines Act , Section 32 ff. Genetic Engineering Act or Section 25 ff. Atomic Energy Act ).

Personal liability

The BGB presents various liability subjects. According to Section 31a of the German Civil Code (BGB), members of the executive bodies of an association are liable for damage caused intentionally or through gross negligence . In Section 179 (1) BGB, the liability of the representative without power of representation is provided. According to Section 278 of the German Civil Code, the debtor is responsible for the fault of his legal representative or other vicarious agent as well as his own fault. At least two joint and several debtors assume joint and several liability in accordance with Section 421 ff. BGB towards a creditor who acquires a direct contractual obligation against these joint and several debtors. The innkeeper is liable in accordance with Section 701 (1) of the German Civil Code (BGB) for damage to items brought in by the guest through no fault of their own. The guarantor agrees to § 765 para. 1 BGB by the contract of guarantee , to the creditor of a third party for the fulfillment of the obligation to stand up the third party. The guarantor undertakes unilaterally in the informal - and not regulated in the BGB - guarantee contract either to be responsible for future damage / loss regardless of fault or to accept liability for a specific economic success.

Asset liability

Finally, jurisprudence understands liability also as "asset liability" and means the submission of the assets belonging to a debtor (liability object) to the access of the creditor (s) in the foreclosure. Liability of the debtor today is usually liability with the property. The once significant liability with one's own person is now only known in passing as compulsory detention ( Section 888 (1) ZPO). A distinction must be made between unlimited and limited liability in terms of asset liability. If the entire debtor's assets are available to the obligee for enforcement, it is an unlimited asset liability . Asset liability is limited if only certain assets can be accessed. As a rule, the asset liability is unlimited with the entire debtor's assets, whereby the debtor protection limits this asset liability through non-attachability, for example . Another limitation of asset liability lies in the lack of access to assets that the debtor has made available to third-party creditors as real collateral , giving them a specific right of access exclusively (§ § 771 ZPO, § 47 InsO) or priority satisfaction (§ § 805 ZPO, Section 49 InsO). There is limited asset liability in the case of real collateral ( mortgage , pledging , assignment by way of security , assignment as security in general and assignment of vehicles as security as well as security land charges ) in which the debtor has ceded specific assets to a security buyer.

Commercial law

If a trading company continues , the new owner is also liable for the liabilities of the previous owner ( Section 25 (1) HGB ). Anyone who inherits a trading company is liable for the business debts of the deceased owner under both inheritance and commercial law ; liability under commercial law results from Section 27 (1) HGB.

In a group , the group liability includes, on the one hand , the liability of one group member for another to non-group members and, on the other hand, financial compensation obligations within the group. The ruling parent company is therefore liable for the liabilities of a dependent subsidiary . The Federal Court of Justice (BGH) has its jurisdiction to the consolidated financial liability in September 2001 changed in favor of direct liability of shareholders because of the withdrawal of the required fund. In July 2007, the BGH finally announced that it would no longer sanction an abusive intervention in company assets with direct liability, but instead subject violations of the earmarking of company assets to the tortious damage compensation norm of § 826 BGB as liability for the destruction of existence .

Corporate law

In the case of partnerships ( open trading company (OHG), limited partnership (KG), BGB companies and sole proprietorships ), the partners have unlimited liability with their private assets ; The exception is the limited partner in a limited partnership. The partners who are liable with their private assets are therefore also called personally liable partners , the object of liability is their entire assets. The object of liability of an OHG is its corporate assets and the private assets of its shareholders (§ § 124 , § 128 HGB); in the case of a limited partnership, this applies to the general partner , while the liability of its limited partner is limited to its capital contribution§ 161 , § 171 HGB). In the case of corporations , only their corporate assets are usually liable, but their shareholders are not liable with their private assets (Section 1 (1) sentence 2 AktG, Section 13 (2) GmbHG, Section 2 GenG). In the case of the limited liability company , this limited scope of liability is already expressed in its name.

Dieter Schneider defines the liability characteristic of equity in companies as a "buffer before the company becomes insolvent , ie its inability to meet payment claims that are fixed in amount and time when due".

Employment Law

The distribution of liability in the internal relationship between employer and employee is based on the case law of the Federal Labor Court . According to this, the employee's liability for business-related activities is limited and depends on the level of indebtedness. He is only liable to the employer for culpably inflicted damage to property , either in accordance with Section 823 of the German Civil Code (illegal act) or Section 280 (1) of the German Civil Code (breach of the contractual obligation from the employment contract ). In the external relationship, the employer is also liable according to one of the two legal norms if he culpably causes property damage.

Public law

If the European Union (EU) concludes contracts ( purchase , work or rental contracts ) with other EU member states , natural or legal persons , it is obliged to pay damages in the event of a breach of contractual obligations ( Article 340 (1) TFEU). The individual member states, in turn, are liable within the framework of state liability for damage that their legislative , judicial or administrative bodies inflict on a citizen through violations of Union law . In contrast to national official liability, this liability under Union law for damage caused by the state organs through the unlawful implementation of Union law is called state liability.

The official liability , in turn, is the financial responsibility of the state in the civil service for damages that a carrier of governmental authority ( incumbents ) a person as part of his duties unlawfully inflicted and culpable. In doing so, he must have acted in accordance with public law or omitted something (Art. 34 GG in conjunction with § 839 BGB). This liability initially applies to the civil servant himself ( Section 839 (1) BGB), but according to Art. 34 sentence 1 GG, the state takes over the civil servant with discharging effect and is solely liable in external relations. For damages caused by the non-sovereign administration, the official liability does not apply, but the general law on damages of the BGB. The judge's privilege under Section 839, Paragraph 2 of the German Civil Code (BGB) only exists for wrong judicial decisions if the judge has violated the law ( Section 339 StGB) or was bribed ( Section 332 StGB).

Tax law

Claims arising from a tax liability are the tax claim , the tax rebate claim, the liability claim, the claim to an ancillary tax service, the reimbursement claim and the tax reimbursement claims regulated in individual tax laws ( Section 37 (1 ) AO ). According to § 69 AO, the legal representatives and asset managers ( § 35 AO) and the persons entitled to dispose ( § 35 AO) are liable if claims from the tax liability relationship are not determined or fulfilled in good time due to intentional or grossly negligent breach of the obligations imposed on them or if, as a result, tax refunds or tax refunds are paid for no legal reason . In addition to this tax liability, there are also liability regulations in the individual tax laws (e.g. Section 42d , Section 44 (5) EStG, Section 20 (3) ErbStG).

The liability situations resulting from the tax code can be divided into personal and real liability . Personal liability (§§ 69 to 75 AO) means that the liable party is personally responsible for the tax liability of a third party. Liability in rem according to § 76 AO ("material liability") means that goods subject to import and export duties - regardless of the rights of third parties - serve as security for the tax on them .

Breaking apart guilt and liability

Typically, liability follows guilt. Who z. B. owes the payment of a sum of money , is also liable for the fulfillment of this debt. But there are also cases in which guilt does not result in liability or in which liability does not require guilt.

Liability without guilt

Liens, for example, only establish liability, but not guilt (at most, the owner of the pledged item can also be the debtor of the secured claim, which is possible but not necessary). § 1113 BGB speaks of the fact that the encumbrance of a property with a mortgage has the consequence that “a certain sum of money is to be paid to satisfy a (...) claim from the property”, which could initially be understood as the justification of a debt. Against this, however, speaks that sums of money in this sense cannot be paid “from the property” (how should that work?), So something else must be meant. Consequently, § 1147 adds : "The satisfaction of the obligee from the property (...) takes place by way of foreclosure". The owner of the encumbered property does not owe any money from the mortgage, but is only liable with the property for an already existing debt (e.g. for repayment of a loan). This becomes even clearer with the example of the land charge , which does not presuppose any claim at all (and therefore also no guilt).

Liability through no fault of one's own also exists if someone provides collateral as security provider for someone else's debts (such as the surety ). Another case of liability without a corresponding debt exists if, as an exception, a creditor does not enforce against the debtor's assets, but rather against that of a third party, because the latter has acquired the debtor's assets in a way that can be challenged . He then has to tolerate the foreclosure even though he does not owe the creditor anything.

Guilt without liability

Conversely, guilt is also conceivable, for the fulfillment of which the debtor is not or not fully liable. In the case of an heir whose liability for the obligations of the estate is limited to the estate according to Section 1975 of the German Civil Code (BGB), the situation may be that he is only partially liable for his debt. Anyone who has inherited around 50 euros in credit and 500 euros in debt owes 500 euros, but is only liable for this debt with the 50 euros under certain conditions. Is still in the rest of his assets enforced , it can contrast with the enforcement action defense act ( § 785 ZPO). The natural obligation is based on a debt, but the debtor does not have to be liable, for example in the case of statute of limitations ( Section 214 (1) BGB), wages ( Section 656 (1) BGB) or gambling debts ( Section 762 (1) BGB).

Something similar can happen in the joint joint venture and in the case of liability restrictions under maritime and inland shipping law ( Section 786a ZPO). Debt without liability also exists if the debtor is withdrawn from state jurisdiction by virtue of international law ( sovereignty , exemption , extraterritoriality , diplomatic immunity ). In the past, so-called “imperfect liabilities” ( bonds in kind ) were also counted among claims that exist and can be fulfilled, but cannot be enforced. Today it is mostly argued that such cases are not even guilty.


Often referred to also as a liability liability is the duty of someone who by the conduct or omission of another one damage has arisen through damages to compensate. Liability issues include, for example, the culpa in contrahendo , the warranty and the law of tort . A distinction is made between the normal case of fault liability and strict liability .

You can take out liability insurance against this liability . There are private ( personal liability insurance ), occupational ( professional indemnity insurance ) and operational ( business liability insurance differentiated liability insurance). Very specific liability insurance is also offered for special areas of life (see e.g. water sports liability insurance or animal owner liability insurance ). For some professions, professional liability insurance is mandatory ( compulsory insurance , see e.g. motor vehicle liability insurance for every motor vehicle operator, professional liability insurance for lawyers and tax advisors ).

Misleading use of the term liability

For purely linguistic reasons, the term liability is occasionally used undogmatically as a synonym for guilt . For example, Section 769 of the German Civil Code (BGB) stipulates that co-guarantors are "liable (...) as joint and several debtors". This should only avoid a stylistically unsightly repetition ("owe as joint and several debtors"). The name of the GmbH as a “limited liability company” is also misleading, as the company is by no means limited in liability for its debts, but unlimited liability with all of its corporate assets. Rather, what is meant is the limited liability of their shareholders, because they are not liable for the liabilities of the GmbH with their private assets. If the shareholders have paid their capital contribution in full, they are free of liability.


For Ingo von Münch, liability under international law is “the obligation of a subject under international law resulting from an injustice attributable to him under international law with the consequence of an obligation to pay damages”. A state is only liable to another state for damage suffered if an organ attributable to the damaging state has acted.

In the Swiss Code of Obligations, the term liability does not serve to denote certain legal relationships that differ from debt . A distinction between guilt and liability can only be inferred from the Code of Obligations in the respect that liability, in contrast to guilt, is more used to designate obligations for damages, from contract or tort, and further for subsidiary obligations, incidental debts, guarantee and in their Scope restricted obligations is used.

The term liability ( English liability , responsibility ) is as complex in the Anglo-Saxon area as in the German-speaking area, whereby both English terms are very controversial in terms of content and their delimitation. Thus, liability often as a possible consequence of responsibility understood.

While in the socialist legal systems the term liability means a precise regulation of the material responsibility of the injuring party, in international relations liability is understood as the obligation to provide a service or the subjection of assets to the access of a creditor.

See also

Further liability aspects:

Individual evidence

  1. Gerhard Köbler, Etymological Legal Dictionary , 1995, p. 176
  2. Christoph Oertel, Objective Liability in Europe , 2010, p. 17
  3. Carl Joseph Anton Mittermaier, Archive for Civilist Practice , Volume 193, 1993, p. 78
  4. Julius von Staudinger / Dirk Olzen , BGB Commentary , 2005, introduction to §§ 241 ff., Rn. 235
  5. BGH NJW 1973, 884
  6. BGH WM 1999, 779
  7. Lutz Haertlein, Execution Intervention and Liability , 2008, p. 8
  8. Joachim Gernhuber, The debt relationship , 1989, p. 71
  9. Willi Groß, Handelsrecht , 1994, p. 11 8
  10. Marcus Lutter , Civil liability in the corporate group , in: ZGR 1982, p. 247
  11. ^ Alpmann & Schmidt, Brockhaus Fachlexikon Recht , 2005, p. 813
  12. BGH, judgment of September 17, 2001, Az .: II ZR 178/99
  13. Renate Rabensdorf, Die Durchschlagshaftung in German and Russian law of corporations , 2009, p. 18
  14. ^ Dieter Schneider, Capital Markets and Financing , 1987, p. 187
  15. BAG, judgment of September 27, 1994, BAGE 78, 56
  16. Bruno Binder / Gudrun Trauner, Public Law - Basics , 2014, p. 209
  17. Dieter Birk / Marc Desens / Henning Tappe, Tax Law , 2015, Rn. 302
  18. Bernhard Bergmans, Law of Obligations: General and Contractual Bases , 2000, p. 27
  19. ^ Ingo von Münch, Völkerrecht , in: Seidel-Hohenveldern, Lexikon des Rechts, 1985, p. 114
  20. David Von Wyss, The Liability of the General Partner for the Company's Liabilities , 1953, p. 41
  21. Louis FE Goldie, Concepts of Strict and Absolute Liability and the Ranking of Liability in Terms of Relative Exposure to Risk , in: NYIL (16), 1985, p. 180
  22. ^ Martin Luther University Halle-Wittenberg, Scientific Journal: Society and Linguistics Series , Volume 36, 1987, p. 73