Civil Liability

Who is liable under civil law for damages incurred?

Hardly any other legal term is used in German law as diversely as that of liability (Haftung). As far as it is of interest to you as a client in civil litigation, liability is the term used to describe the obligation to accept responsibility for damages incurred. In German civil law, both contractual and legal claims against the liability debtor can be considered as a basis for liability.

In the area of contractual liability, the parties to the contract first determine, through their contractual agreements, which party must specifically fulfil which obligations and thus also for which breaches of obligations one party to the contract should be liable to the other. Therefore, already during the drafting of the contract, significant liability risks for one contracting party can be avoided or at least limited by legal advice. For example, in the case of a consultancy contract, certain areas of consultancy can be excluded from the consultancy obligation from the outset. Furthermore, it is possible to limit liability in terms of amount or to limit it to certain types of fault, for example only for intentional and grossly negligent breaches of duty, or even to exclude it completely. The possibilities of contract drafting are often overlaid by legal restrictions, especially from consumer protection law. We can help you to design your limitation of liability in such a way that it meets the current legal requirements.

Furthermore, we will also be happy to help you to examine limitations of liability contained in contracts already concluded by you to determine whether they actually stand in the way of the user of this clause being able to make a claim.

 

In order to be able to effectively enforce or ward off contractual liability claims, it is indispensable to work through and understand the history of a contract in detail. This is the only way to assess with certainty which obligations the parties actually wanted to take on, what their content and scope is and whether accordingly these obligations were actually culpably violated. It is also the only way to find out whether a limitation of liability is to be measured at all against legal restrictions and whether these were observed in this case.

A further important aspect of liability law is the determination of the subjects of liability, i.e. the persons whose actions are important for liability. Thus, a basic principle of partnership law (Personengesellschaftsrecht) is that these breaches of duty are attributed to their corporation and that they are accordingly liable for any damages arising therefrom (executive body liability, § 31 BGB). In the case of cooperation of persons based on the division of labour, in particular if someone uses other persons to fulfil obligations taken on by him/her, it is a basic principle of liability law that the principal is liable for the misconduct of these persons as if he/she had acted on his/her own (liability for vicarious agents, § 278 BGB).

The proper determination of the subject of liability is also important in company law.Partnerships, such as a limited liability partnership (Kommanditgesellschaft) or a private corporation, are organised in such a way that, in addition to the company assets, there is always at least one – natural or legal – person as a partner who is liable without limitation with his entire assets. In contrast, the liability of corporations, such as a limited liability company ( GmbH) or astock corporation (Aktiengesellschaft), is usually limited to the company’s assets. My advice can help you to find the appropriate liability constitution for your company. In addition, I can help you with my litigation experience to enforce your liability claims against the right debtor and in doing so also to take advantage of opportunities that are not necessarily obvious at first glance. However, you can also make use of these sometimes subtle distinctions to ward off liability claims against you, for which my advice offers the necessary support.

In our more than 10 years of legal practice, we have prepared and represented in court a large number of liability disputes on both the claimant and the defendant side. In particular, we can help you as a partner to protect your private assets from the access of the company’s creditors. If you have suffered a disadvantage from a contract, wewill examine for you whether this was caused by a breach of duty by your contractual partner and whether he is obliged to pay you damages.