4.5 - Tort Law

What is a delict/tort (Delikt) in German Law?

A non-contractual obligation giving rise to damages.

Does German law recognise a general liability for culpably causing damage to others?

No — there is no general clause of liability in German tort law.

How many major liability provisions structure German tort law in the BGB?

Three (All require fault)

• § 823 I

• § 823 II
  § 826

Do the main BGB tort provisions require fault?

Yes

Is pure economic loss generally recoverable under § 823 I BGB?

No — there is no general liability for pure economic loss under § 823 I.

Does German tort law recognise strict liability? (No Fault)

Yes — strict liability exists outside the BGB in specific areas (§ 7 Road Traffic Act (StVG): liability of vehicle keepers)

What are the prerequisites of § 823 (1) BGB?

1. Infringement of a protected right

2. Act or omission

3. Causality

4. Unlawfulness

5. Fault (intent or negligence)

6. Damage

7. Causality between infringement and damage

What rights are protected under § 823 (1) BGB?

• Life

• Body

• Health

• Freedom

• Property

• Other Absolute Rights

What level of fault is required under § 823 (1) BGB?

Intent or negligence.

When is an infringement under § 823 (1) BGB lawful?

When justified (e.g. self-defence, §§ 227 BGB, 32 StGB).

What is the legal consequence of liability under § 823 (1) BGB?

Compensation for the damage suffered, according to §§ 249 ff. BGB.

What elements must be established for tort law claim under § 823(1) BGB?

1. Injury to a legally protected right (life, body, health, freedom, property, or other rights)

2. Act or omission by the tortfeasor

3. Causation between act and injury

4. Illegality

5. Fault (intent or negligence)

6. Damage

7. Causation between injury and damage

What do “injuries” and “fault” mean in § 823(1) BGB?

• Injury: An act or omission

• Fault: Intent or negligence

How is “property” understood under § 823(1) BGB?

Property does not mean assets in general. § 823(1) BGB does not cover pure economic loss; only injuries to specific property rights are protected.

What qualifies as “another right” under § 823(1) BGB?

A right comparable to the listed ones and absolutely protected (not merely contractual), e.g. lawful possession, general right of privacy (Art. 1(1), 2(1) GG), and an established and operating business.

When does an omission count as an act under § 823(1) BGB?

Only if a duty to act existed, e.g. Verkehrssicherungspflicht: whoever creates a safety hazard must take necessary and reasonable precautions.

How is causation established under § 823(1) BGB?

1. Condicio sine qua non (but-for test)

2. Adequacy

3. Protected purpose of the norm

How are unlawfulness and fault assessed under § 823(1) BGB?

Unlawfulness is usually presumed unless justified (e.g. self-defence); for “other rights,” interests must be balanced.

Fault requires responsibility and intent or negligence (reasonable care; § 828 I BGB excludes children under 7).

What are the prerequisites and legal consequences of § 823(2) BGB?

1. Breach of a protective statute that is intended to protect another person (Schutzgesetz)

2. Unlawfulness

3. “Fault”

4. Compensable damage

5. Causality between 1. and 4.

Core difference between § 823(1) and § 823(2) BGB?

§ 823(1) requires injury to a protected right; § 823(2) requires breach of a protective statute.

What is special about protective statutes under § 823(2) BGB?

They can protect pure economic interests, e.g. § 263 StGB (fraud), which protects the victim’s assets.

What does § 823(2) BGB cover?

Liability when someone breaks a law (statute) meant to protect people. Not every law counts — it must be a “Schutzgesetz”” (protective statute).

When does a statute count as a Schutzgesetz under § 823(2) BGB?

When the law is meant to protect certain people, and the victim is one of those people.

• Example: A sidewalk safety law protects pedestrians; if a pedestrian is injured because a driver blocks the sidewalk, they can claim under § 823(2). Cyclists would not be protected.

What are the prerequisites and legal consequences of § 826 BGB?

1. Damage inflicted on another person

2. Act = “inflicts”

3. Causation (act - damage)

4. Act is in a manner offending common decency (immoral, without legal grounds)

5. Fault = intentional

6. Compensable damage

7. Causation (damage - compensable loss)

Legal Consequence:

• Compensation to the injured party according to § 249 ff. BGB.

What is the main aspect of § 826 BGB and why does it exist?

§ 826 BGB imposes liability for intentional harm done in a manner offending common decency.

It exists to protect victims from egregiously immoral conduct that causes damage, even if no specific right under § 823 BGB is violated.

What are the prerequisites and legal consequences of § 831(1) BGB?

1. Vicarious agent: Principal “uses another person to perform a task”

2. Unlawful tortious act of the agent: damage inflicted unlawfully on a third party.

3. Act occurs while carrying out the task

4. Exclusion of liability is the principal exercised reasonable care in:

• Selecting the agent

• Producing devices or equipment

• Managing the business activity, or if the damage would have occurred even with such care.

Key Differences between Tort Liability and Liability within Obligations?

Tort Law (§§ 823, 826 BGB)

• Protects absolute rights

• Pure Economic Loss = Generally not covered

• Fault must be proven

• Only own fault counts

Liability within Obligations (§§ 280, 278 BGB)

• Protects contractual obligations

• Pure economic loss = Possible

• Fault presumed (§280 I 2)

• Liability for helpers possible (§278)

How does § 823 I + § 831 BGB work?

Example

Delivery driver damages a parked car while working.

• §823 I → helper commits a tort

• §831 → principal liable if negligent in selection/supervision

• Exculpation possible

How does § 280 + § 278 BGB work?

Example:

Contractor’s helper repairs a roof badly and causes damage.

• §280 I → breach of contractual duty

• §278 → helper’s fault = principal’s fault

• No exculpation

Simple Difference between §823 + §831 and §280 + §278.

• Accident - §823 + §831

• Bad Performance - §280 + §278

What is §831 BGB (Tort Law)

Makes a person liable for a tort committed by a helper, if the person was negligent in choosing or supervising that helper.

• Example: Delivery driver hits pedestrian while making deliveries.

How Law Works:

1. Driver commits a tort - §823 I BGB

2. Driver is a Verrichtungsgehilfe

3. Employer may be liable under §831 BGB

4. Employer can escape liability for proving careful selection and supervision.

What is §278 BGB (Contract Law)

Attributes a helper’s fault to the debtor in a contractual relationship.

Example: A contractor’s helper installs a roof incorrectly and causes water damage.

How the Law Works:

1. Contract between contractor and customer

2. Helper breaches a contractual duty

3. Helper is an Erfüllungsgehilfe

4. Contractor is liable under §280 I + §278 BGB

Main Difference Between §831 and §278 BGB?

§831 relates to tort liability for negligent selection or supervision of helpers, while §278 attributes liability for a helper's fault in a contractual relationship.

§831 = Escape possible if you prove careful selection of employee.

§278 = Escape not possible, even if you selected employee carefully you (contractor) will still be liable.

What is the double causality requirement in § 823 (1) BGB?

First Causality: Act - Protected Legal Interest

• Did the defendant’s action or omission actually cause an injury to a legal right?

• Example: You trip over a loose cable that your neighbour left lying around (fall and break arm).

• Question: Did the neighbour’s failure to secure the cable cause the injury to your bodily integrity?

Second Causality: Injured Legal Interest - Compensable Damage

• Did the injury to the legal right lead to actual compensable damage for the victim?

• Example: Your arm is broken (injury to bodily integrity). You have £2,000 in medical bills and cannot work for two weeks.

• Question: Did the injury to your arm cause the financial or personal loss you are claiming?