care

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Care in which vernacular the diligence and accuracy in action and in law , the legal obligation of legal entities , subject to the rules of law to behave. The opposite is carelessness.

General

In law, diligence is normative , socially related and objectively typifying. The normative element requires due diligence in the respective circumstances, so that normal behavior is not sufficient. According to a judgment of the Federal Court of Justice (BGH) of July 1970, customary practice can only be considered due diligence if it does not constitute abuse . The case concerned a misprint in a medical textbook (25% instead of 2.5% in the differential diagnosis of internal diseases ), which could have been avoided by taking special, sometimes costly, measures. The social relevance concerns the specific public ; for example, only what can be expected of medical professionals in the same situation can be required of a doctor. Objectively typifying is the behavior of a doctor in the same situation.

The indefinite legal term “the care required in traffic” has a far-reaching meaning. The law understands “traffic” to mean legal relations, i.e. legal relationships between legal subjects. “Required” means that the degree of due diligence to be applied must be determined according to objective standards. The decisive factor for "the care required in traffic" is not the attentiveness of a specific person , but rather the attentiveness of an average level-headed and conscientious participant in the relevant public in a corresponding situation. The usual care in traffic must be based on relevant scientific knowledge and technical skills. Therefore, all rules of the art ( Lege artis ), i.e. the state of the art and the state of science, must be observed.

history

In Roman law , care or fearful precision ( Sollicitudo in Latin ) or attention or attention ( dilligere in Latin ) was used for care . If the conscientious housefather ( Latin: diligens pater familias ) disregarded care, he acted negligently. In order to hold an extremely negligent administrator ( Latin depositar ) accountable , the lawyer Aulus Cornelius Celsus used the criterion of customary diligence ( Latin diligentia quam in suis ), which is still used today in German law .

The linguist Johann Christoph Adelung assumed in 1811 that the word care was probably composed of care and exercise. Probably the word worry goes back to the old high German sworga . In the 13th century, sorcveltic or sorcveldikeit is documented in Middle High German . The mayor of Lübeck, Gerhard von Minden, used the word sorichvolt in Middle High German around 1400 . As can be seen, Sorgfalt first appeared in 1637 in today's spelling in the Lübeck chancellery regulations. In High German, care is a reinforcement of the word “care”.

The General Prussian Land Law (APLR) of June 1794 did not use the term due diligence, but spoke of the consequences of one's own breach of duty through "oversight" (instead of negligence; §§ 18 ff. APLR). In German law, the legal concept of diligence can be traced back to the “diligentia” of Roman law. An alternative draft to the Criminal Code, which did not come into force, stipulated in 1966 that “those who fail to exercise the due diligence to which they are obliged and capable, and therefore carry out a statutory offense, act negligently” (Section 18-E StGB 1966 ).

species

In 1963 , Erwin Deutsch initiated a discussion of internal and external care in the specialist literature . Even if the BGH has repeatedly based this distinction, it is very controversial in the specialist literature whether this differentiation is necessary. In any case, the inner diligence relates to the knowledge of the possible realization of the facts and demands attention and concentration . It consists of "the knowledge of the danger and the control of the appropriate behavior". Inner care is the customary care ( Latin diligentia quam in suis ). The outer care ( § 276 , para. 1, sentence 2 BGB ) relates to the externally observable behavior, as is the legal equivalent and requires Improper handling behavior. Internal care is a prerequisite for fulfilling external care. If both types of care are violated, there is negligence . As a rule, internal diligence is irrelevant in liability law , because it depends on the objective external breach of care. Inner diligence also applies if there is a subjective, individual standard for negligence. Anyone who cannot act independently in this sense is adequately protected by Section 827 of the German Civil Code. In criminal law , internal care is subjective, external care is objective negligence.

An event is inevitable ( force majeure ) if someone takes the "extreme care that can be reasonably expected from the facts" as a basis. This extreme care already existed in Roman law ( Latin culpa levissima ). In road traffic , the utmost care is required of those entering and leaving, and there is an even greater duty of care for those entering the flowing traffic backwards.

Standard of care

The starting point for determining the necessary care is the integrity claim of a legal asset to be protected , taking into account the degree of its threat , the ability of the agent, the possibilities of knowledge, the social usefulness of the behavior as well as the danger and legal certainty expectations of legal transactions. Care in one's own affairs ( Section 277 of the German Civil Code) does not exempt from liability for gross negligence . Care is required, which is incumbent on any decent person, in order to ward off harm. Personal inadequacies such as ignorance , fatigue or lack of experience are not taken into account.

With merchants there is the indefinite legal term "diligence of a prudent businessman". This poses special challenges to § 347 para. 1 HGB in commercial transactions to merchants. In a commercial transaction, the merchant has an increased duty of care, which is based on his particular expertise and business experience. According to § 43 para. 1 GmbHG who managing a GmbH in the affairs of society apply the diligence of a prudent businessman, § 93 para. 1 AktG talks with the directors of the corporation from the "diligence of a prudent and conscientious manager". You act as an administrator within the framework of organ liability , which is due diligence.

Law

The concept of due diligence is very common in laws , but they do not offer a legal definition . Therefore, it is an indefinite legal term. The BGB and the GwG each mention the care 24 times, in the HGB, AktG and KWG it is also often represented.

civil right

If the necessary care is neglected, there is negligence. According to § 254 BGB there is a split concept of negligence, namely the objectively-typified due diligence according to the reason ( § 276 Abs. 2 BGB) and the subjective-individual fault . According to Section 276 (2) of the German Civil Code (BGB), there is (slight) negligence if "the care required in traffic" is neglected. The "care required in traffic" is the degree of prudence "which is to be observed according to the judgment of prudent and conscientious members of the relevant public". The standard of conduct or diligence, “necessary care” must therefore be observed by everyone.

The law differentiates between different degrees of deviation from this standard of care, namely simple (slight), gross negligence (recklessness) and the violation of care in one's own affairs . Gross negligence is the failure to observe the slightest care and violates the necessary care to an unusually high degree; It does not take into account what had to be evident to everyone in the given case or obvious considerations were not made. The “necessary care” also occurs in § 241a BGB ( unordered goods ), § 259 Paragraph 2 BGB (accountability of the administrator ), § 260 Paragraph 2 BGB ( publication of a whole ), § 708 BGB ( liability of the shareholders of a BGB -Gesellschaft ), § 833 BGB ( animal owner liability ), § 1359 BGB (liability of spouses for obligations arising from marriage), § 1664 BGB (parent liability for children).

Commercial law

The HGB deals with the diligence of a prudent businessman in § 86 HGB (duties of the commercial agent ), § 130a HGB ( ban on payment in the event of insolvency or overindebtedness ), § 347 HGB (due diligence in commercial transactions), § 384 paragraph 1 HGB ( commission agent ), § 390 Paragraph 1 HGB (liability of the commission agent for loss of or damage to the commissioned goods).

Other areas of law

Various other areas of law also deal with due diligence issues. According to Section 2 (1) No. 7 UWG , entrepreneurial diligence is "the standard of specialist knowledge and diligence which it can reasonably be assumed that an entrepreneur adheres to in good faith in his field of activity towards consumers , taking into account decent market practices". If the entrepreneur's business activities do not meet these requirements, there is unfair competition ( Section 3 (2) UWG). The exercise of this care requires appropriate behavior. In an administrative act that needs management "carefully and impartially all [legal and practical] aspects of the case study". The standard of care taken here is that of average administrative management.

Employment Law

In labor law , case law distinguishes between the slightest negligence and moderate negligence in the context of employee liability in the case of simple negligence . The slightest negligence is an exceptional case in which the employee can only be accused of very little negligence (he accidentally drops something, makes promises or assaults). Medium negligence is simply neglecting the "care required in traffic" (forgetting to operate the handbrake on a truck). These levels of care do not result in any liability for damages on the part of employees.

Criminal law

In criminal law there is no duty to be diligent, only the duty to refrain from improper conduct : "What one cannot do, one should leave behind". According to § 15 StGB, negligent action is only punishable if it is expressly threatened with a penalty . The case law is based on the civil law concept of negligence in Section 276 of the German Civil Code.

Professional due diligence

The professional duty of care ( professional ethics ) is regulated in some academic professions, such as architects , doctors , journalists or lawyers . The doctor has to maintain professional diligence and thus observe the medical rules of art. His duties of care are determined by the respective, reasonable efforts and the state of medical science accessible and available to him at the time of treatment. When checking whether the “journalistic diligence” has been observed, the standard of a “responsible, conscientious, intelligent, knowledgeable and competent journalist who carries out careful research and in doing so follows the principle of audiatur et altera pars - which is usually by obtaining an opinion of the person concerned is to be complied with - takes into account ”. The Anglicism Due Diligence concerns the "due diligence" ´ in the economy , in which legal opinions are supposed to exclude any existing legal risks in certain transactions .

Everyday care

Private life and work can only be managed without disruption with care. In doing so, careful people carefully and systematically consider all environmental conditions and use criteria such as precision , accuracy , conscientiousness , sense of order , thoroughness, prudence or consideration in their actions and activities and consider all possible consequences of action. The purpose of due diligence is to exclude risks , liability , penalties , damage and / or accidents through this behavior . Even if certain risks can be insured , the policyholder must maintain his standards of care, otherwise a moral hazard is present if less care is taken. Too much care is called anankastic or compulsive .

See also

Web links

Wiktionary: diligence  - explanations of meanings, word origins, synonyms, translations

Individual evidence

  1. Erwin Deutsch / Andreas Spickhoff, Medizinrecht , 2014, p. 209
  2. BGH, judgment of July 7, 1970, Az .: VI ZR 223/68
  3. Joachim Quittnat, Der Privatrechtsfall , 2005, p. 24
  4. RGZ 126, 329, 331
  5. BGH, judgment of December 16, 1977, Az .: V ZR 91/75
  6. ^ Paul Jörs, Römisches Recht: Römisches Privatrecht - Abriss des Römischen Zivilprozessrechts , 1949, p. 179
  7. Digest March 16, 32, Cels 11
  8. ^ Johann Christoph Adelung, Grammatical-Critical Dictionary of High German Dialect , 1811, p. 151 f.
  9. Wolfgang Pfeifer, Etymological Dictionary of German , 2004, p. 1310 f.
  10. ^ Friedrich Ludwig Karl Weigand, German Dictionary , MZ, 1876 p. 741 f.
  11. Erwin Deutsch, Insurance Law, Liability and Damage Law , 2014, p. 575
  12. Erwin Deutsch, Insurance Law, Liability and Damage Law , 2014, p. 577
  13. ^ Benno Mugdan , Motive zum BGB , Volume I, 1899, p. 279
  14. Erwin Deutsch, Negligence and Required Care , 1963, p. 94 ff.
  15. Wolfgang Wurmnest, Fundamentals of a European Liability Law , 2003, p. 145
  16. Hein Kötz / Gerhard Wagner, Deliktsrecht , 2010, Rn. 119
  17. ^ Nils Jansen, The Structure of Liability Law , 2003, p. 428
  18. Claus Roxin , Criminal Law: General Part , Volume I: Basics, 2006, p. 1064 ff.
  19. BGHZ 7, 338, 339
  20. BGH, VR 1985, 835
  21. BGH NJW 1952, 796
  22. BGB-RGRK / Erich Steffen, § 823, 1981, Rn. 405
  23. Wolfgang Wurmnest, Fundamentals of a European Liability Law , 2003, p. 146
  24. BGH NJW 1972, 150, 151
  25. Otto Palandt / Christian Grüneberg, BGB Commentary , 73rd edition, 2014, § 277 Rn. 5
  26. ECJ, judgment of November 21, 1991, case C-269/90: Hauptzollamt München ./. Technical University of Munich
  27. Claus Roxin , Criminal Law: General Part I , 2006, § 24 / § 36
  28. OLG Saarbrücken, judgment of June 24, 1998, Az .: 1 U 815 / 97-159
  29. ^ OGH, judgment of January 21, 2009, Az .: GZ 15 Os 125 / 08h
  30. Ulrich Deichert / Wolfgang Höppner / Joachim Steller (eds.), Traumjob or Nightmare , 2016, p. 146