Organizational fault
Organizational negligence in tort law is liability for breach of organizational duties or for failure to meet legal requirements for operational organizational measures. This means that the fault in organizations is not necessarily assigned to the acting person . In typical use cases, an organizational error by an employee is blamed on the employer .
General
Organizational duties are when someone transfers the duty to maintain safety to a third party and has to ensure by way of delegation that the third party properly complies with the duty to maintain safety. If the third party violates the delegated traffic safety obligation, the transferor is liable for organizational fault. The primary organizational obligation is to create a task- oriented, functional organization when starting a company . This includes choosing the right legal form through to a suitable structure and process organization . One speaks of a secondary organizational obligation when the company management intervenes in an existing organization in order to remedy any organizational deficiencies. The main difference between ordinary tortious liability and liability due to organizational fault is that the person liable is generally liable in the event of poor organization even if the employee acting in the individual case is not at fault.
species
The legal figure of organizational fault exists by virtue of the law and through case law .
Corporate organizational fault
In § 31 BGB there is an independent liability for organizational deficiencies, the so-called corporate organizational fault . However, this provision is not a liability-justifying claim basis , but a liability-related norm. According to this, the association is responsible for damage caused to a third party by its organs . This legal regulation applies - contrary to its wording - not only for legally competent private law associations, but also for legal persons under public law ( § 89 BGB) as well as for legal persons ( AG , GmbH ) and partnerships ( OHG and KG ) and the BGB society . When organizing the company , a managing director of a GmbH must ensure that he has a sufficient overview of the economic and financial situation of the company in order to be able to perform his duties accordingly.
Operational organizational fault
The operational organizational fault , however, was developed by the case law as a sub-case of the unlawful act according to § 823 Abs. 1 BGB. According to this, the company management is liable if it has failed to make general organizational arrangements. Operational organizational fault has three forms:
- Selection fault : occurs when a company the responsibility to unsuitable employees delegated;
- Faulty instructions : work instructions are missing, incorrect or incomplete;
- Monitoring fault : checks are not carried out at all or carried out infrequently.
The Stock Corporation Act contains numerous provisions on the internal organization of the company ( Sections 76 ff. , Sections 95 ff. , Sections 118 ff. AktG) and the organization of a multi-person board ( Sections 77 ff. AktG). The internal organization is the responsibility of the board of directors ( Section 76 (1) AktG); in the case of a GmbH, the management is responsible for the careful organization of operational processes ( Section 6 (1) and Section 35 (1) GmbHG). If they do not fulfill these obligations of a “prudent and conscientious manager” ( Section 93 (1) AktG) or a “prudent businessman” ( Section 43 (1) GmbHG), personal liability towards the company from Section 93 (2 ) applies AktG or Section 43 (2) GmbHG. The company management is particularly obliged to protect the property of third parties, such as the lessor , the security owner or the supplier of retention of title . It is personally liable to third parties in accordance with the law of tort for infringement of property if it sells objects that are owned by a third party or arranges such a sale (“building materials decision”). This judgment, which is controversial in the specialist literature , has become a central aspect of operational organizational fault.
Organizational negligence at credit institutions
According to the organizational requirements of Section 25a KWG, credit institutions must have a “proper business organization that ensures compliance with the statutory provisions to be observed by the institution and the economic necessities”. The Federal Court of Justice (BGH) demanded in a ruling from May 2009 that a bank must organize its business operations to protect legal transactions in such a way “that the employees who are responsible for the business transactions concerned are available to and from them with their existing knowledge is also used. According to this, [...] the bank is deliberately at fault if it knew its obligation to inform customers or at least considered it possible ( conditional intent ) and nevertheless deliberately failed to instruct its investment advisor to inform customers accordingly ”. This is especially true if, as in the case of BaFin guidelines , are not implemented internally. Violations of section 25a KWG can lead to the dismissal of a manager in accordance with section 36 (1) KWG.
Organizational fault in an authority
In the area of official liability ( § 839 BGB, Art. 34 GG ) it is often about organizational negligence when a citizen suffers damage through state action and there is no specific person responsible within the authority . If the responsible official cannot be proven to be at fault , for example because he was ill at the time when he should have taken a certain action, this does not exclude a culpable breach of duty by the authority through the figure of organizational fault . If official duties are violated in an authority without a responsible person being identified, there is at least one organizational fault.
If an authority is not equipped in terms of factual and personnel so that it can fulfill its obligations towards third parties, z. B. in the case of overloading or excessive demands of the specific public officials, absences due to illness or vacation, non-employment or non-availability of the staff necessary for the fulfillment of tasks, an organizational deficiency of the authority that triggers liability even if the employee is not at fault.
Other use cases
The legal figure of organizational fault can also be found in the case law in other contractual relationships, e.g. B. for travel contracts ( travel defects ). The tour operator is only liable for travel accidents if the latter is at fault in the organization.
damage
The prerequisites for fault liability arising from organizational negligence are an unlawful act of violation (including omission ), culpability and damage . Then the injured party is entitled to compensation . The strict liability to be separated from this (from the Product Liability Act , Environmental Liability Act or Water Management Act ) is regulated differently. In the case of culpable liability, an entrepreneur must be responsible for the misconduct of his employees, but he can exculpate himself with evidence of exculpation in accordance with Section 831 (1) sentence 2 of the German Civil Code (BGB ) if the company is well organized (adequate selection, guidance and monitoring of employees) . Companies can take out D&O insurance against such damage .
Web links
Individual evidence
- ↑ Gerald Spindler, Corporate Organizational Obligations , 2011, p. 669
- ↑ BGH, judgment of February 24, 2003, Az. II ZR 385/99, full text .
- ↑ BGH, judgment of June 19, 2012, Az. II ZR 243/11, full text .
- ↑ BGH, judgment of December 5, 1989, Az. VI ZR 335/88, full text = BGHZ 109, 297, 304.
- ↑ BGH, judgment of May 12, 2009, Az.XI ZR 586/07, full text .
- ↑ Hans Peter Bull / Veith Mehde: General Administrative Law with Administrative Doctrine , 2009, p. 470.
- ↑ Klaus Tonner, The Travel Contract , 2000, p. 110 f.
