Magister iuris, Lecturer of Civil Law, University of Tartu
The Concept of General Duties of Care in the Law of Delict
The general composition of the traditional three-level delict distinguishes among the objective elements of an act (the act, consequence, and causal relationship between the act and the consequence), its unlawfulness, and fault. Unlawfulness as a prerequisite for delictual liability can often be derived from damage to the absolutely protected legal rights. In certain cases (to be detailed below), however, this is not possible. Therefore, the judicial practice of the Federal Republic of Germany has developed the concept of general duties of care for testing delictual liability. Other countries that have adopted the German delictual liability model (e.g., Switzerland, Austria) apply the same concept, and the judicial practice of the
The purpose of this article is to explain and analyse the main problems relating to general duties of care. The following issues are therefore discussed. The first part of the article focuses on why the concept of general duties of care should be recognised at all -- what its meaning in the law of delictis. The second part discusses the nature and substance of general duties of care. In the third part of the paper, the author tries to answer the question of how the derivation of unlawfulness from a violation of general duties of care affects the general structure and relationship of elements of delict.
The author considers the distinction between violation of general duties of care and neglect in the form of failure to exercise the care required in ordinary social intercourse, tackled in the last part of the article, to be the most intriguing issue discussed in this article. As a violation of general duties of care results in unlawful behaviour, the question of a distinction between carelessness and the violation of general duties of care can also be regarded as one of distinction between fault and unlawfulness.
In legal literature, unlawfulness and fault are often dealt with in the same chapter. This is so because these prerequisites for liability are often not clearly distinguishable. It is a question that has provoked discussion among the jurists of the Federal Republic of Germany for some time now. E. Deutsch has found that the relationship between rules of behaviour and care has not yet been fundamentally defined3. It has been questioned whether the violation of a duty of care, which duty is specified in each particular case, and fault can be distinguished from each other at all4. However, it has also been found that since § 823 of the German Civil Code (BGB) clearly distinguishes between unlawfulness on the one hand and intent or carelessness on the other, the law still understands carelessness as something different from unlawfulness5. K. Zweigert also finds that although unlawfulness and fault are dogmatically clearly distinguished, discussion about the meaning and scope of the concepts of fault and unlawfulness has arisen lately6.
To offer insight into the meaning of general duties of care in the context of delictual liability, it should be noted at the outset that the literature on the tort law of the countries belonging to the Germanic family of law recognises two approaches to establishment of unlawfulness: the wrongful consequence theory and the wrongful act theory.
As mentioned in the introduction to the article, unlawfulness as a prerequisite for delictual liability can be established under the theory of wrongful consequence if damage has been done to the absolutely protected legal rights; to be more exact, damage to a legal right also indicates unlawfulness. According to BGB § 823 (1), such absolutely protected legal rights are those to life, the body, health, freedom, and property (e.g., if A shoots B and B dies, the unlawfulness of the act can be derived by applying the theory of wrongful consequence because the life of B is an absolutely protected legal right and his death indicates unlawfulness). Similar legal rights are also protected under § 1045 (1) 1) - 3) and 5) of the Law of Obligations Act7 (LOA)8. The unlawfulness of a behaviour is indicated only if the consequence of the behaviour was the intent of the tortfeasor or if it is part of the course of the act, hence forming the direct consequence of the behaviour9.
Therefore, the legal theory and policy of the Federal Republic of Germany reached a common understanding some time ago that unlawfulness cannot always be established by reliance on the existence of a harmful consequence alone. It has been found that in the event of passive behaviour or acts of omission involving indirect damage to a legal right, where the harmful consequence is a more distant result of the behaviour in question (we may speak of indirect damage when the liability arises from a positive act that leads to the consequence not directly but via further circumstances, such as the behaviour of other persons or the victim him- or herself)10, the behaviour may be regarded as impermissible, and hence unlawful, only if there was a duty to avoid or divert the particular danger11. We can therefore speak in terms of a legally relevant omission only if the person had a duty to act. In order to recognise unlawfulness and hence the liability of the tortfeasor in such cases, judicial practice has developed the relevant legally binding duties of conduct, or the general duties of care12.The establishment of unlawfulness in such a manner is based on the wrongful act theory13.
To characterise the differences between direct and indirect damaging of a legal right (including omission), it should be noted that while indirect damaging of a legal right may also be possible through lawful and permitted behaviour, where direct damaging of a legal right is involved, the consequence is always contrary to the legal order (unless there are circumstances precluding unlawfulness)14. In other words, the existence of a causal relationship between the act and the harmful consequence is sufficient for the creation of liability in a case of direct damage, but in a case of indirect damage, liability for causing a harmful consequence arises only if the behaviour was contrary to duty15.
The difference between the wrongful consequence and wrongful act approaches, according to B. S. Markesinis, lies in the fact that only the former treats unlawfulness and fault separately16. In essence, if the theory of wrongful consequence is applied, carelessness has to be evidenced on the level of fault. Where a legal right is damaged by socially adequate behaviour (e.g., a doctor administers a poison instead of a medicine to a patient because the packages have been switched), this constitutes unlawful behaviour according to the theory of wrongful consequence but not according to the proponents of the wrongful act theory17. In any case, there is no great difference in the final result, as in the former case, the tortfeasor may be released of liability due to lack of fault and in the latter case, this may happen in an earlier test of unlawfulness.
Prof. T. Raab also states that the dispute between the proponents of the two theories is systematic and theoretical, or, rather, that the question lies in the meaning of carelessness in the tort law system. Raab finds that the application of a different theoretical approach is irrelevant to the resultant disposition of a claim. Even where a person has exercised the care required in ordinary social intercourse, the question of whether his or her liability has to be denied because the person acted lawfully or instead because there is no fault is irrelevant to the end result18.
The recognition of general duties of care and the further development of the concept has had (and still has) an important meaning in the law of delict of the Federal Republic of Germany: it leads to a significant extension of delictual liability. Duties of care are judicial requirements and prohibitions, established by judge-made law through the establishment of duties of conduct19. The content of a duty of care may be described as follows: when a person creates or controls a danger, the person must take all possible and reasonable precautions to maintain control of the danger and prevent its actualisation as damage. Such a danger may be created by, e.g., opening traffic (streets, roads, passages), a shop, a sports facility, etc20. As a rule, duties of care rest with the owners of the things in question, but the creation of a duty of care does not depend on ownership: it is the creation, maintenance, and control of the danger that is decisive21. It should be noted that the violation of a duty of care indicates unlawfulness.
It may be said on the basis of the above that duties of care are similar in character to a general clause22. A duty of care is automatically created within and by virtue of the law of delict23. It could be said that duties of care have created duties of conduct, which the legislator could also formulate as statutory duties24. In any event, duties of care could be specified by a legal provision25; i.e., a duty of care may be prescribed by law (BGB § 823 (2) and LOA § 1045 (1) 7)), although it is usually not26. The legislature cannot be expected...