Fault liability

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Fault liability in means law the legal responsibility for the illegal and culpable violation of legal interests or rights of third parties .

General

In the case of fault liability, the person responsible must be responsible for damage for which he is responsible for failure to comply with certain duties of care , because this caused damage. Statutory liability provisions require culpable, i.e. not only objectively unlawful , but also personally reproachable behavior in the form of willful intent or negligence . The fault liability is the obligation to pay for injustice . In addition to the compensatory function of compensation , this behavior-related liability also has a preventive character, because it is to be admonished to avoid the occurrence of damage as far as possible through legal behavior.

A distinction must be made between strict liability forms of liability. These include strict liability , the legally added liability for interference and the liability for success in the event of random occurrences . The same prerequisites are not required for these forms of liability as for fault liability. In accordance with Section 1 (1) of the ProdHaftG, the manufacturer or, in accordance with Section 7 (1) of the StVG, the vehicle owner is liable without being charged with fault.

Legal issues

requirements

The debtor has under § 276 1 para. BGB to intent and negligence represented . After that, he must accept liability for damage caused by his negligent or willful behavior. In addition to these subjective culpability of the realization of the facts nor its objective must illegality are present. Is further provided the fault ability , wherein § 276. 1, sentence 2 BGB for the service disruptions to the tort § § 827 BGB and § 828 refers BGB, which is why in the entire fault liability a fault-ability adhesive must be present. According to Section 278 of the German Civil Code, the debtor is also liable for the negligence of third parties , so that he must also be responsible for vicarious agents and legal representatives .

Facts of fault liability are factual (in the narrower sense), illegality and fault . If damage has occurred, the adequately causal legal act / omission must be unlawful and the damaging party must be at fault. In the event of service disruptions , the failure to fulfill the duty, i.e. the breach of duty , is a matter of fact. In the case of unauthorized acts , this constitutive element consists of a damaging violation of legal rights or protective laws or intentional immoral damage .

species

The forms of fault leading to fault liability, intent and negligence, can be divided into liability due to the breach of obligations arising from a special relationship (contractual liability due to impaired performance) and due to unlawful acts (offense):

Unauthorized act (non-contractual liability from tort law ):

(a) Existing fault : The most important provision of fault liability is § 823 BGB, according to which damages must be paid by anyone who intentionally or negligently unlawfully damages the life , body , health , freedom , property or any other right (e.g. right to a name ) of another injured. The owner is in accordance with § 823 BGB the owner responsible for the damage caused by the fact that as a result of his negligence the matter worse is, goes down or for any other reason he is not edited can be. A legal asset, an absolute right or a protective law must have been violated. The provision concerns both the violation of an absolutely protected legal interest and the violation of a protective law in its area of protection.

Further types of liability in the case of proven culpability are credit risk ( § 824 BGB), immoral willful damage ( § 826 BGB) or breach of official duty ( § 839 BGB).

(b) Presumed fault : the fault does not form part of the basis for a claim if the debtor can exonerate himself. Such a discharge of liability ( exoneration ) exists in the case of liability for vicarious agents ( § 831 BGB), in the liability of the person obliged to supervise ( § 832 BGB), animal owner liability ( § 833 sentence 2 BGB), liability of the animal overseer ( § 834 BGB), liability the landowner ( § 836 BGB), liability of the building owner ( § 837 BGB) and the liability of building maintenance debtor ( § 838 BGB).

In this case, there is no obligation to pay compensation if the debtor has taken the due care required in traffic.

Service disruptions ( contractual liability ):

(a) damages in addition to performance : the debtor breaches an obligation of a contractual obligation ( breach of duty ) and he has this represented , the creditor may, in accordance with § 280 Abs. 1 BGB compensation for the resulting loss incurred demand.

Breach of contract are all defaults in performance such as default of debtor , poor performance or non-performance . With these breaches of duty, a debtor acts differently than what is contractually prescribed for him by the contractual relationship . If the debtor is in arrears, the debtor falls behind with his due performance (either in the event of a delay in delivery or a delay in payment ). The bad performance concerns the inadequate performance of a contract. Non- performance occurs when the debtor fails to provide the performance owed due to impossibility . These breaches of an obligation to have § 280 always result in the para. 1 BGB creditors damages may demand. The damage assessment takes place in accordance with § § 249 ff. BGB. In the event of poor performance, the buyer can also request subsequent performance (removal of the defect or delivery of a defect-free item) in accordance with Section 437 No. 1 BGB, Section 439 Paragraph 1 BGB, reduce the purchase price or withdraw from the contract instead of compensation .

(b) Compensation for delay in performance : In accordance with 280 (2) BGB, the obligee can claim compensation for delay in performance in the event of debtor delay ( Section 286 BGB). The fault liability , which basically already existed before the occurrence of the default, is only extended by § 287 sentence 1 BGB insofar as the debtor is now responsible for “any negligence” during the default

(c) Pursuant to Section 280 (3) BGB, the obligee can demand compensation instead of performance in the cases of Section 281 BGB, Section 282 BGB and Section 283 BGB.

(d) Reimbursement of expenses instead of the service is available according to § 284 BGB.

(e) Compensation in the event of initial impossibility : According to Section 311a (2) of the German Civil Code (BGB), the obligee can demand compensation in the event of an event that causes the performance of the service to be impossible and occurs before the contract is concluded.

Special laws : Who, for example, according to § 97 Abs. 2 of the Copyright Act , the copyright infringed intentionally or negligently and unlawfully is obliged to compensate the injured party for the resulting damages. Anyone who intentionally or negligently infringes a protected trademark is obliged to compensate the owner of the trademark for the damage caused by the act of infringement ( Section 14 (4 ) of the Trademark Act ). If a worker by illegal data processing personal data of an affected caused injury to person, he or his right to the person concerned is obliged to pay compensation ( § 83 , para. 1 BDSG ).

The list only contains the essential legal sources of fault liability.

Legal consequences

If someone fulfills the requirements of fault liability, he must pay compensation for the damage incurred. The legal term compensation makes it clear that with liability the risk of damage is passed on to the culprit . An injured party can only demand compensation if the damage is the result of a violation of legal interests that the injured party has committed through an illegal and culpable act. For example, as a legal consequence, Section 823 (1) of the German Civil Code (BGB), in the event of an unlawful act , orders compensation for the damage resulting from the violation of legal rights; all financial losses according to § § 249 ff. BGB are to be replaced. According to this, the party obliged to pay damages has to restore the condition that would have existed if the circumstance that required compensation had not occurred. In deviation from Section 253 of the German Civil Code, tort law also provides for compensation for non-material damage .

International

The Austrian fault liability is generally in § 1295 para. 1 Civil Code codified. In addition, there are further requirements, the causality (“added”) and the illegality ( § 1294 ABGB). The claim for damages of the injured party results from § 1295 Abs. 1 ABGB. According to this, the damage arises either from an illegal act or omission of another or from a coincidence. If there are doubts about fault, the presumption applies that the damage was caused through no fault ( Section 1296 ABGB). An expert is liable according to § 1300 ABGB if he negligently gives wrong advice .

In Switzerland , Art. 41 OR regulates the basic form of non-contractual fault liability, according to which the injuring party has to pay compensation if he negligently or deliberately inflicts unlawful damage on another person. The principal is liable for the damage that his employees have caused in the performance of their official duties if he has not exercised the required care ( Art. 55 OR). The animal owner's liability arises from Art. 56 OR, the works owner's liability from Art. 58 OR. According to Art. 333 ZGB , the head of the family is liable for persons who are under his supervision.

In France , liability in tort ( French: responsabilité delictuelle pour faute ) under Art. 1382 Code civil (CC) and Art. 1383 CC presupposes the occurrence of damage ( French faute ) and the causality between behavior and damage. Italy knows a fault liability according to the law of the tortious act from Art. 2043 Codice civile , which provides for compensation for wrongdoing ( Italian risarcimento per fatto Ilsecito ). In Spain , through no fault of the injuring party, there is basically no non-contractual fault liability ( Spanish responsibilidad extracontractual ). According to Art. 1902 Código civil , the injuring party who causes damage to another person through culpable or negligent act or omission is obliged to repair the damage caused.

literature

Literature on fault liability in the catalog of the German National Library
Andreas Riedler : Study Concept Civil Law IV - Law of Obligations Special Part - Statutory Obligations . 5th edition. LexisNexis, Vienna 2018, ISBN 978-3-7007-7471-6 .
Christian Rabl, Andreas Riedler: Civil Law III - Law of Obligations Special Part . 6th edition. Verlag Österreich, Vienna 2017, ISBN 978-3-7046-7799-0 .