Flo's Notes

Tort Law

4 min read

References without law book default to BGB.

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Tort Law

A tort (Delikt) is unwanted behavior that causes harm to another person or their property. Tort law provides remedies for those harmed by the actions of others, allowing them to seek compensation or other legal remedies.

Damages under contract law and those under tort law are not mutually exclusive and might apply at the same time, so that there are multiple grounds for the same claim. In an analysis, all possible paths have to be considered.

Tort law is a mechanism of deterrence against unwanted behavior. While not all torts are criminal offenses, many torts can also be prosecuted under criminal law. However, the standards of proof and consequences differ between civil and criminal proceedings.

The main consequences of damages from tort are § 249 BGB and following; A person liable in damages must restore the position that would exist if the circumstances giving rise to the obligation had not occurred.

Tort

§ 823 I BGB: A person who, intentionally or negligently, unlawfully injures the life, body, health, freedom, property or any other right of another person is liable to make compensation to the other party for the damage arising therefrom. This is in contrast to common law, which focuses on the behavior of the tortfeasor (negligence, deceit).

The right of another person that is injured must be absolute rights enforceable against everyone (not contract claims), e.g. honor or trademarks.

Requirements

According to § 823 I BGB (as structured in the TUM lecture), the following requirements must be met:

  1. Harm to a Protected Right: Harm caused to life, body, health, freedom, property, or another right of another person.
  2. Action or Omission: The harm must be caused by a human action or an omission (an omission is relevant if a duty to supervise exists or if the tortfeasor created a source of danger).
  3. Causation: This action must have caused the harm.
  4. Unlawfulness: The action must have been unlawful (i.e., not justified by grounds like self-defense). Harming someone is always unlawful, unless it is justified (e.g. self-defense).
  5. Fault: The action must have been negligent or intentional.
  6. Financial Loss: The harm must have resulted in a financial loss, however, there is no general protection of another person’s financial position or wellbeing.

§ 823 II BGB extends this to apply to violations of any statutory law intended to protect other people (e.g. theft, fraud).

Additionally, § 826 BGB extends this to intentional acts that are contrary to public policy and cause intentional damage to another person (e.g. intentionally spreading false information about a competitor).

Vicarious Liability

If a person is liable for the actions of another person (e.g., an employer for the actions of an employee), this is called vicarious liability, which is defined in § 831 I BGB.

The employer can be held liable for the torts committed by their employees if those torts were committed in the course of employment. This does not apply if the principal exercised care in selecting and supervising the agent, or if the damage would have occurred regardless of this care.

However, for a Breach of Duty, due to § 278 BGB, a principal can be held responsible for negligent or intention actions of agents they have contracted and charged damages in line with § 280 I.

Children

  • § 828 I BGB: Children under the age of 7 are not responsible for damage inflicted on another person.
  • § 828 II BGB: Between 7 and 18, children are only responsible if they have the insight required to recognize their responsibility. This is determined by the court on a case-by-case basis, considering the child’s age, maturity, and understanding of the consequences of their actions.
  • § 832 I BGB: Parents or persons obliged by law to supervise a child are liable for damage caused by the child. This does not apply, however, if they fulfilled their duty of supervision (including, for example, discussing rules of conduct) or if the damage would’ve occurred regardless of their supervision. This is the same mechanism as for vicarious liability, but for children.

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