Germany Flashcards
Acts
- Tatbestand - Infringement of a right
- 823(1) - Violation of a right (Right to life and bodily integrity, personality rights, right to business, right to possession)
- 823(2) - Breach of a statutory duty
- 826 - Intentional unethical conduct - Unlawfulness - Satisfied unless justification
- Negligence/intention - Satisfied unless excuse:
- Negligence is easier to satisfy than intention, always check negligence first
- Negligence means to act contrary to what is required by society - Causation
- Damage
Omissions
- Tatbestand - Same as for acts
- Unlawfulness - Is there a safety duty, from the point of view of the victim?
- SD for immovable property
- SD for use of dangerous movable objects
- SD for dangerous activities (for the organizer of the event)
- SD for relationship with the victim (doctor, pharmacist…) - Has this duty been breached? - Have sufficient measures been taken?
- Follow the objective person standard - Negligence/intention - Satisfied unless excuse (minor, mental incapacity…)
- Causation
- Damage
Pure omissions
German Criminal Code §323 = Breach of a statutory rule = Go under 823(2) Omissions
Public Body Liability
- Breach of official duty:
- Discretion - Requirement of objective and relevant considerations, consistency with previous decisions and in accordance with the scope of the law
- No discretion - Negligence
- Compare to ‘average official’ - Duty aimed at protecting 3rd parties
- Unlawfulness - Satisfied unless justification
- Negligence/intention - Satisfied unless excuse
- Causation
- Damage
The state is liable if:
- In exercise of public law function
- Or of sovereign powers
Court? Civil court
Damages for next of kin
- Only in case of death
- Special personal close relationship
- No fixed amount for compensation
- No closed list
Negligence test
Objective test – Always compare to reasonable person
- Probability of harm
- Extent of loss
- Burden of precautionary measures
- Benefit to society
- Knowledge/skill
Subjective test:
- Children - §828
- Mentally ill - 827 but can still be held liable based on his financial means and the ones of the victim
Mental Harm
- Primary victim - The illness must be recognized
- Secondary victim - The illness must be a recognised psychiatric illness and the mental harm must have been foreseeable
Vicarious Liability
- Establish the employer’s liability:
- Using act or omission scheme - Establish the employee’s liability:
- Employer-employee relationship – Under his instructions
- In course of employment – Relationship between the duty and the damage
- Use fault liability with reverse burden of proof – The employee must show that he did not act negligently when he chose his employee and that he took reasonable measures to prevent the harm
- Employee is also liable for organizational negligence - Defences?
- Decentralization - If the company is really big
Traffic Liability
- If the driver is also the keeper:
- Strict liability for damages to health and objects
- No contact required, the involvement of a car is enough - If the driver is not the keeper:
- Joint liability
- Fault liability with a reverse burden of proof - The driver must prove that he did not act negligently or intentionally to escape liability - Defences:
- Contributory negligence - Not applicable to -10 YO
- External cause - Unforeseeable and unavoidable
Protest Blockade case
Recognition of damages for pure economic loss
Blinded motorist
Traffic liability - You must always apply experienced driver standard, even if the individual has special attributes
Driver with epileptic attack
The fact that the driver completely lost control is an accepted defence to escape road traffic liability
Exploding Water Bottle
If the state of the art did not allow for the defect to be detected at the time it was put on the market, there is no liability
Strict public body liability
Based on customary rule
- Is the burden of proof on an (or a group of) individual(s) disproportionate?
- Is the damage suffered special?
