Vicarious liability

The subject of supervision breach of duty is complex. From it arise - possibly in addition to criminal sanctions - private law claims, especially claims for damages. Main source of law in private law claims is § 832 BGB. There, the duty of supervision violation is regulated under the aspect that for illicit or harmful acts alongside instead of damaging supervised may be (also) subject to the supervision liable. As such, the scheme lacks the liability of the " principal's " (eg and especially employer) for systematically regulated correctly following the rule of § 831 BGB practically more important, in the other it is well to liability for torts, torts of his " assistants " (eg, and especially employees). You can see the provisions of § 831, § 832 BGB summarized under the guiding principle that here compensation claims are constituted against persons who have responsibility for others.

The legal problems of supervision breach of duty is not exhausted, however, the provisions of § 832 BGB. It also relates to - and perhaps even primarily - the ratio between the supervised and the " overseer ". That the Supervised also claims against the supervisors may have because of a regulatory breach, follows from the general law of obligations, after yes a debtor who violated his obligation to the creditor, to pay damages in accordance with § 280 Section 1 BGB is committed. § 280 para 1 BGB applies to any obligation, regardless of whether it is ( contractually ) or legally justified in legal transactions.

The following description is limited to the provision of § 832 BGB as the special in the Civil Code for the liability of the supervisory agents in relation to the damaged from the supervised Third, since the general legal rules for the non-fulfillment of the legal relationship between the supervisory agent and the supervised obligations apply that elsewhere ( power disturbances, for liability for breach of duty ) are treated.

Systematic Review

The supervisory breach of duty is governed by 832 BGB in accordance with what has been said in the introduction, especially in §, the provision on the " liability of the supervisory agents " - the official title of the section since 2002. After that is liable to pay damages, "who is by law to guide the supervision obligation on a person who is of legal age or because of their mental or physical condition of supervision required " if that person unlawfully causes harm to a third party ( § 832 paragraph 1 sentence 1 BGB). The obligation to pay compensation, however, does not occur in accordance with § 832 paragraph 1 sentence 2 BGB if the supervision subject to its supervisory capacity is sufficient or if the damage would have occurred even with proper oversight. The statutory supervisory duties not serve not only to keep the minors from damage that can occur at its own expense in itself, but also to prevent, to engage in age-related carelessness or immaturity rights of third parties, which is also a full- year old likely to injure.

Burden of proof

With this as -designed arrangement of liability for regulatory breaches, the legislature has also undertaken a burden of proof. Even the harmful act of the person in need of supervision solves in principle the liability. However, the supervision subject can avoid the liability if he fails to fulfill its duty of supervision or the damage would have occurred even without violation of the duty of supervision. In a sense, is legally presumed that the dished from supervised damage is due to a breach of the duty of supervision. This assumption can, however, be rebutted by the supervisory agents.

Conditions for liability

Is a prerequisite of liability in accordance with § 832 Section 1 BGB that a legal duty of supervision is as true in 1631 of the Civil Code, for example, and especially the parents with regard to their standing in parental custody children according to §. § 832 paragraph 2 BGB extends the liability to those who are contractually obligated to guide the supervision.

No regulation in the internal relationship

The provisions of § 832 BGB does not exhaust the subject of supervision breach of duty by the Civil Code. So is defined by § 832 BGB the claims of supervised against the Aufsichtspflichtverletzer not, the title of § 832 BGB is therefore too broad. These can be made under other provisions. Rather, the provision granted to a " third party ", which the Supervised has caused damage, a claim against the supervisory agents. In addition, the injured party may have rights against the tortfeasor.

Claim competition

Any claims by the injured party against the tortfeasor and to the supervisory agents coexist. The claims pursuant form. § 840 Section 1 BGB in a so-called total debt in which the creditor has a claim against all the debtor, but he may demand the performance owed him only once. In the so-called internal relationship between the joint and several debtors to each other the wrongdoer is committed solely ( § 840 para 2 BGB). As such, the liability is secondary because supervision breach of duty in the internal relationship of the joint debtors; the damage is internal sole responsibility of the tortfeasor.

Legal Political Criticism

Legal policy subordinating the liability of the Aufsichtspflichtverletzers in relation to the tortfeasor is problematic, as the duty of supervision is also in the interest of the supervised entities to be protected from harm by the supervisor. It is therefore critical of the flat-rate sum of the " supremacy " of the liability of the supervised institutions in the legal literature.

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