Have to represent

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Having to represent is a legal term and element of the German general law of obligations . Anyone who is responsible for the realization of an offense in the legal sense is liable for the implementation of the legal consequences (usually compensation). This is to be distinguished from fault , which expresses the subjective reproach for the realization of the facts. The German Civil Code ( BGB) links the obligation to represent predominantly to (own or third-party) fault, but also knows liability situations that are independent of fault.

principle

The BGB regulates what the (civil law) debtor is responsible for in § § 276 ff. Public law often refers to this, but does not necessarily use the same terminology.

Thereafter, unless the law or the parties involved provide otherwise, he is responsible for his own intent and negligence ("principle of fault "). In principle, there is no distinction in terms of representation in civil law, unlike in criminal law.

The person who acts culpably in this sense is

  • to a (legal or contractual) legal obligation is to act differently than he has done (He would act differently must )
  • and who could also act in accordance with this legal obligation (he could have acted differently ),
  • This, however, knowingly and willingly (= intent), or at least against the offered in the legal due diligence (= negligence) did (He knew this or should it have known).

Intent

Intentional intent is assumed in the event of a knowingly and (conditionally) deliberate breach of duty ( see also: Intentional intent ).

negligence

According to the legal definition of Section 276 (2) BGB, “anyone who neglects the due care required in traffic” acts negligently . What is decisive is not the care that is actually usual in traffic, perhaps not sufficient, but the normatively required care. In contrast to criminal law , however , an objective breach of duty of care is sufficient in civil law , which (only) seeks to create fair compensation for the damage. Subjective recognizability and predictability, however, are not required. A distinction is made between slight and gross negligence, if that is not taken into account, which should be evident to everyone in the specific situation. The Labor knows also still lightest and medium negligence.

Have to represent in other cases

The law breaks this principle several times or enables the relevant agreement under private law in order to avoid unfair results in special constellations of interests or not to restrict the constitutionally guaranteed private autonomy more than is legally necessary.

  • In the case of liability-aggravated no-fault representation within the meaning of Section 276 (1) of the German Civil Code, the law does not relate to individual reproach, but:
    • to the mere occupation of a certain position of power or the abstract risk of realization of the facts (so-called strict liability ), e.g. B. the owner liability in road traffic.
    • the content of the contractual obligation, from which a more stringent standard can result. In particular, the debtor always has to represent his financial capacity (“you have money to have” - principle of unlimited financial liability), so cannot claim that payment is impossible due to lack of money. This already results from the fact that, according to the legal conception, instead of the impossible primary performance, compensation for damages should, if necessary, be in cash.
    • in exceptional cases completely outside the person or power of the debtor, e.g. B. Coincidence or Force Majeure . or
    • to contractual or quasi-contractual events and characteristics assured by the debtor with regard to what is owed ( guarantee liability )
  • In the case of statutory liability privileges within the meaning of Section 276 ABs. 1 of the German Civil Code ( BGB) , the law occasionally ties in with customary diligence (e.g. in Section 1664 of the German Civil Code), i.e. the diligentia quam in suis [rebus adhibere solet] ). Then it is not an objective, but a subjective standard that applies, which is milder than the normal one. The debtor's presentation to the court must therefore aim to ensure that he is otherwise careless with his own things and that he is a disorderly person in general. The debtor is responsible for gross negligence (and especially intent) even if he is less careful in his own affairs, § 277 BGB.
    • The parties can also agree on “limitations of liability”, ie stipulate a milder degree of fault. It cannot be agreed in advance that intent is not responsible, Section 276 (3) BGB. In addition, further legal regulations for the protection of (supposedly) economically and legally weaker parties must be observed, which could otherwise lead to the ineffectiveness of the agreement (in particular the law of the general terms and conditions in § § 305 ff. BGB).
  • The debtor is also responsible to third parties for the “fault” of his legal representative and those persons who, with his will, act as auxiliary persons in the fulfillment of his obligations ( vicarious agents ), § 278 BGB. The norm is inappropriately formulated insofar as representatives and vicarious agents have nothing to do with the obligation and therefore owe nothing in relation to this; a “fault” with regard to the liability can - because it does not exist - not be added. The provision is therefore read to the effect that the actual behavior, and not the standard of care, of the representatives or assistants is projected onto the debtor. The standard of care is therefore not based on the assistant deployed, but on the debtor himself: whoever hires (and pays) a master craftsman to carry out the repairs can also expect the care of a master, even if the apprentice actually works.

meaning

As an element of the offense, the lack of representation via § 280 BGB is the reason for the exclusion of any contractual or quasi-contractual obligation to perform (e.g. compensation for damages ), unless the respective contractual obligation (in the broader sense) contains more specific regulations (e.g. § 536a in tenancy law). The wording of Section 280 (1 ) sentence 2 BGB as a legal objection (“does not apply if ... does not”) makes it clear that it is not the creditor who has to prove the prerequisites for being represented, but the debtor, if necessary has he the breach does not have to represent ( the burden of proof ; does not apply to labor law, § 619a BGB). As a result, it is presumed to have to represent - refutable.

According to Section 286 (4) of the German Civil Code (BGB), default of the debtor also requires representation. § 676c BGB speaks of culpability , but also means having to represent.

In individual cases, it may be questionable which breach of duty the obligation to represent refers to in the case of several breaches of duty. This applies in particular to § 281 BGB.

Which form of having to represent the respective norm is based on, can be inferred either in the case of silence from the general rule or explicitly or by interpreting the respective norm on which liability is based.

Individual evidence

  1. ↑ most recently: Tetenberg, JA 2009, 1; Ludes / Lube, ZGS 2009, 259f