Concept and Definition of Ingerenz
The term Ingerenz originates from the Latin word “ingerere” (to carry in, to interfere) and describes in German law those situations in which a duty to avert danger or prevent damage arises due to one’s own prior conduct. Ingerenz plays a prominent role especially in criminal law and civil law when attributing responsibility. As a cross-institutional principle, it particularly establishes guarantor duties when a risk has been created or increased through prior behavior.
Ingerenz in Criminal Law
Guarantor Position through Ingerenz
In criminal law, Ingerenz means the derivation of a so-called guarantor position. Persons who have either caused or exacerbated a dangerous situation through their conduct are obliged to avert the resulting risks for third parties. If they fail to do so, they can be held criminally liable for omission (§ 13 StGB).
Requirements for Ingerenz as a Guarantor Position
- Risk-creating Prior Conduct: There must be a breach of duty or a risk-causing act that is causally responsible for the dangerous situation.
- Causality: There must be an adequate causal link between the prior behavior and the resulting danger.
- Duty to Avert Danger: The actor must be legally obliged to avert the damage (§ 13 StGB – omission).
Typical case scenarios arising from Ingerenz include the negligent creation of a potentially harmful situation (e.g. causing a traffic accident, disregarding safety regulations, or insufficient securing of a source of danger).
Application Examples and Distinctions
A classic example of Ingerenz in criminal law is a situation where someone negligently causes a fire and then remains inactive while people are harmed. The guarantor duty results from the prior conduct—namely, the negligent ignition of the fire. Failure to render assistance after causing an accident oneself is also a common case of application.
The Distinction from other guarantor positions—such as kinship, contract, or holders of custodial duties—is that Ingerenz does not describe an original legal relationship, but rather one arising from an act.
Extensions and Limits of Duties
Not every creation of a risk automatically triggers an Ingerenz duty. The duty to avert damage arises only if the prior behavior constitutes a breach of behavioral norms or of due care obligations. There is no Ingerenz duty in the case of permitted or socially adequate prior conduct.
Ingerenz in Civil Law
Principle and Expansion of Liability
Ingerenz is also recognized in civil law, for instance in questions of tortious liability pursuant to § 823 BGB. Anyone who creates a dangerous situation for others through their conduct may be obligated to take measures to prevent harm. If this is neglected, it can result in claims for damages.
Traffic Safety Duties as a Field of Application
Traffic safety duties constitute the most important connection between Ingerenz and civil law responsibility. For example, anyone who creates a source of danger on their property (such as an unsecured construction pit) must ensure that third parties do not come to harm.
Causality and Attribution
In civil law, too, causality between the created risk and the damage is decisive. Liability requires that it is precisely the risk-increasing behavior that caused the damage and that a breach of duty can be established.
Ingerenz in Public Law
In public law, Ingerenz primarily plays a role in danger prevention law, such as in police and regulatory law. Anyone who has created a public danger through their conduct may be obliged by authorities to remove the danger or tolerate safety measures.
Dogmatic Classification and Critique
Ingerenz is recognized as a dogmatic principle of liability and is firmly anchored in case law and literature. There is occasional critical discussion as to whether and to what extent already “neutral” or socially adequate prior behavior can establish a guarantor position. The prevailing opinion requires a behavior specifically in breach of law, risk-increasing, or in violation of duties.
Practical Relevance
The importance of Ingerenz regularly arises in judicial practice concerning questions of liability for omissions, but also in traffic accidents, occupational safety, product liability, and general damages. Precisely defining the requirements and limits of Ingerenz is of central importance for the attribution of responsibility within the German legal system.
Summary
Die Ingerenz is a central institution in various areas of law, through which responsibilities for hazardous situations and their prevention are derived from one’s own risk-creating prior conduct. It modifies conventional spheres of duty and contributes significantly to effective risk prevention and the protection of legal interests. Anyone who creates or increases a source of risk through their actions has comprehensive duties of prevention and action, whose neglect can lead to far-reaching consequences in both tort and criminal law.
Frequently Asked Questions
What legal requirements must be met for intervention under Ingerenz?
Under German law, intervention due to Ingerenz requires that a specific danger has been created or an existing danger increased by voluntary prior conduct. This prior conduct may result either from active acts or from a culpable omission. At the core is the so-called guarantor position by virtue of Ingerenz, which makes the actor responsible for averting the danger. The legal standard is whether the prior conduct, by general standards, is deemed a breach of duty (i.e. a breach of due care), and whether there is a causal link between this conduct and the damage incurred. It is also decisive whether the actor was able to recognize the dangerous situation and was objectively and subjectively in a position to remedy it. The specific requirements are: a culpable creation or increase of danger, attribution of the danger, recognizability of the dangerous situation, and a possibility to avert the danger.
In which areas of law is the Ingerenz principle significant?
Ingerenz plays a central role especially in criminal law, namely in the so-called offenses by omission (§ 13 StGB). Here, a guarantor position may also arise if the perpetrator has created or increased a danger through his own conduct. Furthermore, the principle of Ingerenz is applied in civil law, in particular in tort law (§§ 823 ff. BGB), when a breach of duty is established which leads to damage and liability for the consequences. The concept is also used in public law, especially in police law, as a basis for assigning responsibility to disturbers. In summary, the principle of Ingerenz is relevant in all areas of law where responsibility for averting risks can be derived from prior conduct.
How does the guarantor position by virtue of Ingerenz differ from other guarantor positions?
The guarantor position by virtue of Ingerenz is characterized by the fact that it does not arise from statute, contract, close personal relationships, or the assumption of custodial duties, but from one’s own conduct that has created or increased a danger to legal interests. While other guarantor roles often rely on social proximity, familial ties (such as parents towards children), professional duties (such as doctors towards patients), or special obligations, the guarantor position based on Ingerenz depends solely on responsibility for a dangerous situation one has brought about oneself. This form of guarantor duty is particularly relevant in practice, as it significantly extends the scope of liability for omissions and thereby provides legal grounding for the obligation to avert dangers resulting from one’s own behavior.
What are the consequences of violating the duty of Ingerenz in criminal law?
If someone, in the criminal law sense, violates their duty to avert danger after having created or increased a risk through their conduct, this may lead to criminal liability for a so-called offense by omission. The central provision is § 13 StGB, under which the failure to perform a required act is punishable if a guarantor position—such as by virtue of Ingerenz—exists. If this results in harm, such as bodily injury or even death, and this could have been prevented by timely intervention, the person concerned can be prosecuted for failure to render assistance (§ 323c StGB), bodily injury by omission (§ 223, § 13 StGB), or even manslaughter by omission (§ 212, § 13 StGB). In such cases, it must be demonstrated that the perpetrator could reasonably have been expected to avert the danger.
How is the causal link (causality) examined in the context of Ingerenz?
For liability in the context of Ingerenz, it is required that there is an adequate causal connection between the breach of duty by prior conduct and the resulting damage. According to the ‘conditio-sine-qua-non’ formula, it is examined whether the damage would have been avoided with near certainty if the breach of duty had not occurred. Additionally, case law requires an objective foreseeability and attribution of the causal course. This means that the risk which materialized was typically created or increased by the actor’s conduct and was not entirely unforeseeable (the so-called protective purpose connection).
What are the limits of the Ingerenz principle in German law?
The Ingerenz principle is limited where a dangerous situation is not (or no longer) attributable, for example if significant time has passed since the risk-creating behavior or if third parties have acted independently and on their own responsibility. An individual’s self-endangerment can also break the chain of attribution. Furthermore, there is no Ingerenz duty if the prior conduct was lawful or generally accepted in society and no special protection duties could arise. Finally, the reasonableness of the duty to act may also set limits, e.g. if the actor is threatened with danger to their own life or health.
Is Ingerenz relevant in the context of liability for damages and how is it assessed in civil law?
In civil law, particularly in tortious liability (§§ 823 ff. BGB), a breach of duty through prior conduct that creates or increases a risk to another’s legal interest leads to responsibility and thus to liability for damages. Liability based on Ingerenz is well established in case law. For example, anyone who leaves an object on a staircase and thereby creates a tripping hazard may be held liable if an accident occurs. Here too, the breach must be assessed according to the general standards of care set out in § 276 BGB, and fault as well as a breach of duty must be established. The particularity in civil law is that even slightly negligent conduct can give rise to a claim for damages.
