3. Liability for Others

(r?) Introduction

As far as liability for others is concerned, the draftsmen of the BGB had rejected (as being alien to traditional 'German' notions of justice and fairness)^[197] the rule prevailing in French law according to which a person is responsible for the harm caused by the act of persons 'for whom he is answerable' (such as his employees).^[198] Relying on the ins commune?^[199] they tied liability under § 831 I BGB to the requirement that the employer himself (or, in the case of juristic persons, the duly appointed representative, § 31 BGB) had been at fault in the selection, instruction, or supervision of his employee.^[200] The practical impact of this rule is somewhat diminished as a result of a reversal of the onus of proof: the employer has to establish that no fault was attributable to him.

(W Extension of Contractual Liability

At an early stage the Imperial Court started to evade the restrictive requirements laid down in § 831 I BGB by extending the range of contractual liability to cases which one should normally have considered to fall within the proper domain of the law of delict. The most famous exam­ple is the linoleum case from 1911.

RGZ 78, 239, judgment of 7 December 1911, VI. Divi­sion:⁸⁷ The plaintiff had entered a department store in order to buy a linoleum floor-cover. While she was inspecting various samples she was injured by linoleum rolls which had been carelessly handled by an employee of the department store.

According to the Imperial Court 'a legal relationship preparatory to the contract of sale' had come into existence when the parties had entered into contractual negotia­tions.⁸⁸ This legal relationship was 'similar to a contract in character' and had given rise to obligations insofar as both parties had been under a duty to observe due diligence for the health and property of each other when presenting and inspecting the carpets.

Thus, in effect, the Imperial Court incorporated liability for culpa in contrahendo^⁹ into the field of contractual liabil­ity. This opened the way for the application of § 278 BGB: the person operating the department store could be held responsible for the fault of his employee 'to the same extent as for his own fault', i.e., without the additional fault requirement of § 831 I BGB. There can be no doubt that in the linoleum case the Imperial Court left behind the sphere of application previously allotted to the culpa in contrahendo doctrine⁹¹’ and, indeed, the Imperial Court bluntly stated that the real reason for extending the range of contractual liability was the elimination, in the present case, of § 831 I BGB.

It would be repugnant to the general sense of justice if in cases where the employee in the course of displaying or laying out goods for exhibition, sampling, trial, or the like, carelessly injures a prospective purchaser, the proprietor of the business—with whom the prospector wished to make the purchase—should be

An English translation of this case can be found in Markesinis (n. 29) 774 ff. ^w It was based, according to the Imperial Court, on an offer to be shown the carpets and on the acceptance of this offer.

⁸⁹ The term is not mentioned in the decision. ^4:1 Cf. infra pp. 88 ff. answerable only under § 831 BGB rather than unconditionally, so that the injured person should, if the proprietor succeeds in exon­erating himself, be referred to the usually impecunious employee.^[203]

In the published report of the linoleum case another point, sadly, remains unexplored.

RGZ 91, 21, judgment of 5 October 1917, III. Division:^[204] The plaintiff, a civil servant working for the railways, was transferred and moved, with his family, into a new dwelling supplied to him by his employer, the State. Soon afterwards his daughter, the co-plaintiff, contracted tuberculosis. The disease resulted from the fact that the flat had not been disinfected, even though the previous inhabitant had suffered from a pulmonary disease and had thus infected the flat with tuberculosis bacilli. That the disinfection had been omitted was the fault of a rail­way doctor, employed by the defendant. He had treated the previous inhabitant and should have arranged for the disinfection of the flat.

The defendant had been able to exonerate himself as far as the selection, instruction, and supervision of the railway doctor was concerned. Thus, the plaintiff had no delictual claims against the state. The Appeal Court had also refused to countenance a contractual claim of the daughter in view of the fact that a contractual relationship had only been established with her father. The Imperial Court took a different view.

Unless very peculiar circumstances indicate a different conclu­sion, the tenant of the family dwelling who concludes a contract of lease must be taken, as the landlord must know, to intend to obtain the maximum protection for the members of his household and to acquire for them the same rights in relation to the safety of the premises as he himself enjoys against the landlord... If the landlord's contractual duties are not extended in this manner, injured dependants would be restricted to claims in delict and would not have the benefit afforded to the tenant by §§ 278, 538 BGB...

This decision demonstrates, as the linoleum case also does, that the Court was quite prepared to apply the law in a very free and flexible manner in order to extend the contractual liability rules. The reasoning process was openly deter­mined by the result the Court intended to reach. The course mapped out in RGZ 91,21 was soon continued,^[206] even if the term generally used today (contract with protective effect vis-à-vis third parties) was introduced only by the Federal Supreme Court.^[207]

(c) Extensive Interpretation of §31 BGB

Another path that could be used to circumvent the unsuit­able rule concerning liability for others consisted in an extensive interpretation of § 31 BGB. In terms of this provi­sion, a juristic person is liable, without any possibility of exoneration, for any damage which a member of the board 'or other duly appointed representative' may, in carrying out his duty, inflict on a third party. The first—albeit some­what hesistant—steps towards extending this provision were also already undertaken by the Imperial Court in the first years after the enactment of the Code.^[208]

The original meaning of the reference to 'other duly

appointed representative^]' was the inclusion of the special representatives mentioned in § 30 BGB within the liability rule of § 31 BGB.^9/ Thus, the possibility of appointing a special representative had to be provided for in the memo­randum of association. The Imperial Court at first, indeed, insisted on such provision in the memorandum of associa­tion or, in the case of juristic persons under public law, on an equivalent statute establishing the legal person.^{[209] [210] Soon, however, a tendency gained ground to relax this require­ment. Thus, in RGZ 62,31[211] a district architect was regarded as a 'duly appointed representative' of the district, even though his position was not dealt with by statute.}

This extension did not change the fact that the applica­tion of § 31 BGB was still dependent on the way in which the agreement of incorporation (or equivalent statute) had been drafted. This could lead to unsatisfactory and arbi­trary results. The Imperial Court therefore went a step further, converting, under certain circumstances, the possi­bility to appoint a representative into a duty to do so.^[214] In RGZ 89, 186 (187 f.)^[215] the plaintiff twisted his ankle when his foot got stuck in a hole in the pavement. The Court was of the opinion that the municipality was liable to the plain­tiff even if it could exonerate itself (in terms of § 831 I BGB) with regard to all its officials responsible for road safety. For the municipality had to be organized in a manner that there was always a 'duly appointed representative' in charge. No municipality could be allowed to get away with a situation where responsibility in road safety matters merely lay with officials for which the escape route of exoneration was available.

The liability regime devised by the draftsmen of the Code was definitively abandoned in RGZ 91,1 (3).¹⁰⁴ Here the head of the branch office of a business corporation was taken to be a 'duly appointed representative', even though the memorandum of association had merely permitted the establishment of a branch office. The restrictive require­ment contained in § 31 BGB had, for all practical purposes, been discarded.¹⁰⁵ It was sufficient that the representative, for a certain range of business activities, enjoyed an inde­pendent position and that this range of business activities had found some form of expression in the memorandum of association. This liberal extension of § 31 BGB necessarily entailed a restriction of the scope of application of § 831 I BGB.