The position in modern French and German law
In the rather lengthy quotation from Gifford's case reference was made to D. 19, 2, 25, 7 and to a passage in Pothier's Traite des obligations.[5896] Both had by that time exercised a significant influence on liability for others in continental European law, though in completely different directions.
Pothier, of course, became the intellectual father of the strict vicarious liability of art. 1384 code civil, which states concisely that one is responsible, not only for the injury which one causes by one's own action, but also for that which is caused "par lefait des personnes dont on doit repondre".[5897] Digesta 19, 2, 25, 7 (the "que" interpreted conjunc- lively), on the other hand, was one of the key sources upon which 19th- century German legal writers relied in order to reject the notion that one person could be held strictly responsible for the acts of others.[5898] "No liability without fault" was one of the great axioms of pandectist doctrine,[5899] and the Roman texts tended to be read in such a way as to conform thereto. By the time the BGB was drafted the idea of vicarious liability had gained some ground,[5900] but ultimately it managed to establish itself only in the contractual context. According to § 278 BGB, a debtor is responsible for the fault of those whom he employs in performing his obligation, to the same extent as for his own fault.[5901]'2 But when it came to the law of delict, the forces of tradition largely had their way: strongly supported—for obvious reasons—by lobbyists representing the interests of trade, industry and agriculture.2'[5902] Nationalistic sentiments, strangely, also played their role. The principle enunciated in art. 1384 code civil was regarded as entirely alien to traditional "German" notions of justice and fairness.[5903] The rather extensive way in which the French courts applied their regime of vicarious liability did not inspire the German observers with much confidence either.[5904] A master, horribile dictu, had even been ordered to pay damages because his servant had sounded a trumpet at night and thus disrupted the neighbours' tranquillity! In the end, liability for the unlawful acts of employees under the BGB was thus made to hinge on culpa in eligendo vel custodiendo vel inspiciendo; the less traditionally minded proponents of the French system merely managed to achieve a reversal of the onus of proof.[5905] Despite this concession, § 831 BGB hasturned out to be a major source of embarrassment.
Countless ways have been developed by both courts and legal writers to bypass this unsound rule:[5906] [5907] the rather extravagant encroachment of contractual remedies on the law of delict, for instance, a characteristic feature of the modern German law of obligations, is based largely on the desire to make available, for the benefit of the injured party, the stricter rule of § 278 BGB.228
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- The position in classical law
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