2. Verkehrssicheruitgspflichten

The BGB does not distinguish between liability for commission and omission. Both are, in principle, pul on an equal footing. But it has always been recognized, and is taken for granted under the BGB, that there cannot be liability for

The requirements of § 826 BGB have been similarly watered down in many subsequent decisions and contexts; see, with regard to liability for providing mistaken information, Kotz (n.

33) nn. 669 ff. RGZ72, 175 thus set a pattern.

See the references in von Caemmerer (n. 22) 515.

⁶⁹ After the decline of the rtcfio itthiriitrum in the first part of the 19th century (see Lzne of Obligations (n. 25) 1085 ff.) the last three decades of the century saw the development of a doctrine of 'personality rights' (by Carl Neuner, Karl Gareis, Josef Kohler, and Otto von Gierke; see Coing (n. 23) 296 ff.; Dieter l.euze, Dir Entwickhmg des Persilnlichkeitsrechts ini 19. Jahrhiindert (1962) and the literature referred to in biw of Obligations (n. 25) 1083 n. 256) which did not, however, leave any traces in the BGB.

⁷⁰ See the famous decision RGZ 45, 170, judgment of 28 Dec. 1899. Photographers had broken into Otto von Bismarck's death chamber and had made flashlight photographs of his corpse. I he Imperial Court ordered the photographers to hand over the negatives of the photographs; tire decision, characterized by its 'somewhat tortuous reasoning' (Kotz (n. 33) n. 86), was based on the eondietio ob iniustain causain. The legislature reacted by enacting the law mentioned supra n. 60. For a summary of the developments leading up to recognition of a general right to one's personality in 1954 (BGII7. 13, 334 ff.), see Markesinis (n. 29) 63 ff. with copious references to further literature.

'mere' omissions. An omission can only be relevant, for the purposes of the law of delict, if there has been a duty to act.⁷¹ Such duty to act can flow, in particular, from a previous action, or it may be based on statute or contract/² Very soon the Imperial Court went beyond these traditional sources for duties to act by resorting to the notion of a 'duly to ensure the safety of one's neighbour' (VerMtrssic/ier- ungspflicht)/³

RGZ 52, 373, judgment of 30 October 1902, VI.

Division: The plaintiff asked the Prussian state to compensate him for the loss which he had suffered as a result of a rotten tree falling onto his property. The tree had grown on a public piece of property.

The Imperial Court emphasized, at the outset, that an

⁷¹ Windscheid had wanted a specific rule to this effect in the Code; see Benohr (n. 26) 518.

⁷² The requirements for delictual liability for omissions had been disputed since the Middle Ages. This was due, above all, to the lack of precise statements in the sources of Roman law. The only thing that appeared to be clear was that ocdtierc or cornou/vn· per conmnssront’Uf and per oniissioiicni were not put on a par. Such equation, on the other hand, was exactly what the Natural lawyers and the authors of the later ins commune advocated: liability was now imposed for 'culpam omnem, sive in faciendo, sive in non faciendo' (in the words of Hugo Grotius). Nineteenth-century pandectists, again, adopted a restrictive approach; they took D. 7,1, 13, 2 as their cue and emphasized the exceptional character of liability for omissions. Whether a duty to act can be based on a previous action (see Windscheid and Kipp (n. 28) § 455,2) remained disputed. Von Kübel who was in chaige of the preparatory draft of the law of obligations took the view that this restrictive attitude did not meet contemporary requirements. Generally on the development of liability for omissions, see bur of Obligations (n. 25) 1029 f., 1043 ff.; especially for the 19th century, see Detlef Kleindiek, Deiiktshnftung und juristische Person (1997), 56 if.; Seiler (n. 35) 255; on von Kübel, in this context, see Benohr (n. 26) 518 and Kleindiek, 98.

⁷³ An alternative term is Verkdirspflicht. On the terminology, see Hans-Joachim Mertens, in Mflncheiter Kommentar zum 0GB vol. v (3rd edn., 1997), § 823 nn. 203 ff. on the one hand and Külz (n. 33) nn. 232 ff. on the other. Fundamentally important is the work of Christian von Bar, Verkehrspflichten (1980).

The term Verkehrssicherungspflichten was declared untranslatable by F. H. Lawson and B. S. Markesinis, Tortious Liability for Unintentional Harm in the Common Law and the Civil Law, vol. i (1982), 78. In his German Late of Torts (n. 29) 75 Markesinis says that the term is 'not easy to translate'. He summarizes its meaning in the following way: 'whoever by his activity or through his property establishes in everyday life a source of potential danger which is likely to affect the interests and rights of others, is obliged to ensure their protection against the risks thus created by him.' unlawful act in terms of § 823 I BGB may also be committed by omission. What was doubtful, however, was whether the defendant could be said to have been under a legal duty to prevent the tree from causing harm to others. The BGB did not provide an express answer. The question had to be answered in the negative if one were to follow the authority of Roman and contemporary Roman law. In Roman law it would have been necessary to have been granted, or at least to have demanded to be granted, a cautio dannti infecti in order to claim compensation for the loss caused by the defective state of a piece of property; the actio legit Aquiline had not been available for this kind of loss. The BGB had not, however, maintained this point of view, as was apparent from § 836 BGB (liability for the collapse of a building).^{^[190]} ^{^[191]} This provision was not to be understood as excluding the application of § 8231 BGB to cases concerning the collapse of objects other than buildings, particularly the fall of a tree. § 836 BGB, in the view of the Court, was merely one specific emanation of a general principle which was contrary to Roman law, namely 'that today everybody has to be responsible for any loss caused by objects of his, insofar as he had to prevent such damage considering the reasonable interests of the other party' / ¹

Only four months later this decision was confirmed by

RGZ 54, 53, judgment of 23 February 1903, VI.

Division: The plaintiff had fallen on a flight of steps, available for public use, which had become slippery with snow. He claimed damages from the city who owned that flight of steps.

The Appeal Court had rejected the claim; a legal duty, on the part of the defendant, to grit those steps could not be established. The Imperial Court objected to this reasoning and referred to the principle enunciated in RGZ 52, 373. That principle soon became firmly ensconced/⁶

It is remarkable that RGZ 54,53 did not only rely on RGZ 52, 373 but also on a line of decisions based on Aquilian liability, as it had prevailed prior to codification. These decisions had recognized the responsibility of an owner for the condition of his property, as far as it was available for public use.^[192] ^{^[193] RGZ 54, 53 did not, therefore, represent a new beginning but merely continued an older tradition.^[194]}

None the less, the case law establishing the foundations of the concept of Verkehrssichertingspflicht is widely regarded today as a bold piece of judicial development of the law that had never been contemplated by the draftsmen of the Code.^[195] ^{^[196] In view of the continuity between legal practice prior to, and after, the enactment of the Code this view appears to be mistaken. There is nothing to suggest that the BGB had been intended to fall behind the level of protection granted under the ins commune.™}

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Source: Zimmermann R.. Roman law, Contemporary law, European law. Oxford University Press,2004. — 113 p.. 2004

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