Definition and Significance of the Duty to Avert Harmful Outcomes
Die Duty to Avert Harmful Outcomes is a significant concept in German criminal law, particularly in connection with so-called commission by omission offenses. It describes the legal obligation of a person to take affirmative action to prevent a threatened criminal outcome—such as injury or death of another person. The duty to avert harmful outcomes forms the core of the guarantor status (§§ 13, 323c StGB) and is essential for distinguishing between punishable omission and non-punishable passivity.
Historical Development
The duty to avert harmful outcomes developed as criminal liability was extended from active conduct to omission. Early statutory approaches can be found in the 19th century. With the introduction of the Civil Code and the Criminal Code, the duty to act in the face of danger was recognized and systematically regulated.
Systematic Classification
Omission Offenses
Criminal law distinguishes between commission offenses (active conduct) and omission offenses (failure to act despite the option to do so). The duty to avert harmful outcomes is a fundamental element of commission by omission offenses. While true omission offenses are expressly stipulated by law (such as § 323c StGB – failure to provide assistance), so-called commission by omission offenses (§ 13 StGB) are based on the perpetrator’s duty to avert the harmful outcome.
Guarantor Status
The basis for the duty to avert harmful outcomes is regularly a so-called Guarantor Status. This may arise from law, contract, prior conduct, or a close factual relationship. Typical cases include parents to children, spouses to each other, or supervisors in the course of fulfilling their duties.
Legal Foundations
§ 13 StGB – Commission by Omission
In § 13 StGB the legislator has defined under what conditions the duty to avert harmful outcomes arises:
“Whoever fails to avert a result fulfilling the statutory requirements, despite being legally responsible for it (guarantor status), shall be punished in accordance with the laws applicable to the act if the omission is equivalent to the act.”
Accordingly, the duty to avert harmful outcomes is linked to the prerequisites that a guarantor duty exists and that it is objectively possible, reasonable, and legally required to intervene actively.
Further Provisions
The duty to avert harmful outcomes also exists outside criminal law, for example in civil law (traffic safety obligations, e.g. § 823 BGB), but also in public law (such as official duties).
Origin and Scope of the Duty to Avert Harmful Outcomes
Origin of the Guarantor Duty
The duty to avert harmful outcomes may arise from various sources:
- Statutory Foundations: For example, parents towards minor children (§ 1626 BGB), police or fire officers in the course of their duties.
- Contractual Obligations: Care staff towards people in need of care based on a contract.
- Ingerence (Danger-Creating Prior Conduct): Anyone who has created a danger through their conduct is obliged to prevent its occurrence (e.g. the person responsible for an accident).
- Close Actual Communal Relationships: Spouses, cohabitation partners, or similarly intensive relationships.
Limits of the Duty
The duty to avert harmful outcomes exists only if taking action is possible and reasonable. Excessive demands or significant risks to one’s own life and health limit the obligation. It also ends in cases of autonomous self-endangerment by the protected person (principle of self-responsibility).
Criminal Consequences of Breaching the Duty
Criminal Offense of Commission by Omission
If a person breaches the normatively established duty to avert harmful outcomes, resulting in harm (e.g., death, bodily injury), this may be punishable as a commission by omission offense. The prerequisite is that the omission is equivalent to action and the person would objectively have been able to prevent the outcome.
Distinction: Ability to Act and Causality
Omission is punishable if the required active conduct would have prevented the outcome with near certainty (“quasi-causality”). This form of causality is specific to omission offenses.
Distinction from Other Duty Breaches
The duty to avert harmful outcomes must be distinguished from other obligations, such as the general duty to provide assistance (§ 323c StGB), general traffic safety obligations in civil law, or general duties of solidarity. The key feature is that a specific guarantor status is required to establish criminal liability for mere passivity.
Significance in Civil and Public Law
The duty to avert harmful outcomes also plays an important role outside of criminal law—for example, as a traffic safety obligation imposed on property owners or other parties to protect third parties from dangers. In public law, it may be particularly relevant for public officials who must avert dangers to the public.
Practical Relevance and Importance for Legal Practice
The question of whether and to what extent a duty to avert harmful outcomes exists is central to the issue of criminal liability for failing to act. It determines whether a person can be held liable for merely doing nothing when a harmful outcome occurs (e.g. death, serious injury, significant property damage). Court decisions and legal literature have developed a variety of criteria for this, including the reasonableness, possibility of intervention, and distinction between different types of guarantor duties.
Summary
Die Duty to Avert Harmful Outcomes is a central legal obligation to proactively prevent the occurrence of damages under certain circumstances. In criminal law, it ensures liability in the case of commission by omission offenses and is an essential part of the doctrine of guarantor status. In civil and public law, it supplements general protective duties towards third parties. Its precise scope is always determined by the relevant guarantor status and the specific circumstances of each case. Differentiation from general duties to provide assistance as well as from general traffic safety obligations is essential for an accurate legal assessment.
Frequently Asked Questions
What are the legal consequences of breaching the duty to avert harmful outcomes?
A breach of the duty to avert harmful outcomes can result in a wide range of legal consequences, which may vary depending on the case and may be civil, criminal, or employment law in nature. Under civil law, liability for damages according to § 280 BGB is primarily relevant, provided that, within a contractual relationship, the duty existed to avert impending damage and the occurrence of damage is attributable to a violation of this duty. Liability in tort (§ 823 BGB) may also arise, for example, when a guarantor status and thus a duty to prevent the harmful outcome exists. In criminal law, penalties can arise in particular for omission offenses (e.g., under § 13 StGB for true omission offenses) if a person fails to prevent an unlawful outcome despite a legal obligation. Under employment law, culpable breach of the duty can result in sanctions such as warning or even dismissal—for example, when an employee fails to observe safety requirements. Additionally, insurers may pursue recourse claims if an insurance case occurs due to the breach of the duty to avert harmful outcomes.
When does a duty to avert harmful outcomes exist in the legal sense?
A legally relevant duty to avert harmful outcomes arises whenever a person, on the basis of law, contract, or prior conduct, has an obligation to prevent harm to a specific legal interest. The law may expressly provide for such a duty, for example, in the context of parental supervision or traffic safety obligations. Contractual bases may result from protective duties within service, lease, or work contracts, under which the obligor is required to prevent damage from occurring to the obligee. From prior conduct—in particular, the concept of ingerence—a duty to avert harmful outcomes may arise if one’s own behavior has created or increased a hazardous situation, resulting in a special obligation to avert damage. In addition, duties of preservation, warning, and custody frequently arise from so-called guarantor statuses, such as those held by senior employees or supervisors.
How does the duty to avert harmful outcomes differ from general duties of care?
The general duty of care obliges everyone to act in such a way that their conduct does not injure the legal interests of others (traffic safety obligation). The duty to avert harmful outcomes goes further by not only prohibiting harmful conduct, but also requiring active intervention to prevent a threatened outcome (i.e., damage or violation of a legal interest). This is particularly relevant in the context of so-called true omission offenses (§ 13 StGB), where positive action is owed to prevent a specific outcome. The crucial distinction is that if a duty to avert harmful outcomes exists—such as as a result of a special legal status or prior conduct—not only mere omission, but also the failure to attempt rescue may be punishable or may result in civil or employment law consequences.
Who bears the burden of proof for breach of the duty to avert harmful outcomes?
In civil law, the injured party who asserts a claim for breach of the duty to avert harmful outcomes generally bears the burden of proof that such a duty existed, it was breached, and specific damage resulted from this. However, in certain cases, such as employment law or specific protective obligations, there are relaxed requirements for proving causation or reversal of the burden of proof in favor of the injured party. In criminal law, the public prosecutor or the court must, as part of the duty to investigate, prove that the person subject to the guarantor duty culpably breached their duty to avert harmful outcomes and that the statutory result occurred as a consequence. The exact allocation of the burden of proof therefore depends greatly on the underlying area of law and the relevant requirements for making a claim.
Are there statutory examples of duties to avert harmful outcomes?
Yes, the law contains explicit provisions for cases in which a duty to avert harmful outcomes exists. A prominent example is § 323c StGB (failure to provide assistance), which requires everyone to provide help in emergencies if possible and reasonable. Other statutory examples include the parental duty of care (§ 1631 BGB), traffic safety obligations (§§ 823 ff. BGB), and the duties of supervisors, such as those arising from § 832 BGB. Such duties also exist within employment law provisions—for instance, § 618 BGB obligates employers to ensure the safety and health of their employees. Furthermore, numerous specialized laws, such as the Product Safety Act, impose specific duties to avert harmful outcomes on manufacturers and distributors of goods.
What role does the duty to avert harmful outcomes play in criminal law?
In criminal law, the duty to avert harmful outcomes is of central significance in connection with commission by omission offenses, particularly under § 13 StGB. Accordingly, a person can be criminally liable for failing to prevent an unlawful outcome despite a legal duty to do so. The guarantor status, i.e., the legal duty to protect a particular legal interest, is the decisive prerequisite. Typical case groups include the duty to protect those under one’s care (such as parents, caregivers) or the duty arising from ingerence (self-created dangers). The duty to avert harmful outcomes thus transforms mere omission into punishable misconduct, provided that the guarantor status is affirmed and the statutory harm occurs.
To what extent can the duty to avert harmful outcomes be expanded or restricted by contract?
Contractual agreements may both extend and, within limits, restrict the scope of the duty to avert harmful outcomes. For example, service, work, or lease contracts often contain specific provisions on duties of care and protection; these often include an obligation to actively prevent damage. However, limitations on the duty to avert harmful outcomes are subject to statutory limits, for example where statutory duties of representation, care, or traffic safety cannot be waived (see § 276 (3) BGB). Conversely, far-reaching duties of supervision or explicit contractual guarantees may establish a more extensive duty to avert harm than required by law. It must always be assessed on a case-by-case basis to what extent contract clauses restricting or expanding the duty are legally valid.
