Liability for Actions

Definition and legal basis of liability for actions

Die Liability for actions is a central concept of civil and commercial law. It refers to the liability of a person for their own conduct, whether by active deeds or by omission, that has caused damage. Liability for actions is opposed to so-called strict or condition-based liability, in which responsibility is not tied to the conduct but solely to a particular condition or outcome. In Germany, liability for actions is especially significant in tort law and contract law.

Legal basis of liability for actions

Tortious liability for actions

Liability for actions in tort law is regulated in the German Civil Code (BGB). The key provision here is Section 823 BGB, which sets out liability for unlawfully caused damage.

Requirements of tortious liability for actions

1. Act: There must be a voluntary act or legally relevant omission.
2. Infringement of a legal right: An absolutely protected legal interest (e.g., life, body, health, freedom, property) must have been infringed.
3. Causality: The act must have been causally responsible for the loss incurred.
4. Unlawfulness: The act must have been unlawful; the absence of a justification is required.
5. Fault: At least negligent conduct is required, but often intent is also necessary.
6. Damage: Compensable damage must have occurred.

Standard of liability

Tortious liability for actions is regularly based on the standard of negligence (Section 276 BGB), although liability in cases of intent can also arise. Special cases of liability, such as in the Product Liability Act or environmental liability, may provide for different or stricter requirements.

Contractual liability for actions

Liability for actions is also of substantial importance in contract law. Here, it arises from one party breaching obligations in a manner that harms the other party.

Liability for breach of duty

According to Sections 280 ff. BGB, liability for actions applies in the event of a breach of duty arising from a contract. Essential for liability are:

• Contractual relationship
• Breach of duty, i.e., expected conduct was omitted or performed incorrectly
• Attributable fault—fault is generally presumed (Section 280(1) Sentence 2 BGB)
• Damage occurrence
• Causality between breach of duty and damage

Difference from strict liability

Contract law often recognizes cases of strict liability (e.g., liability for agents, Section 278 BGB). Nevertheless, personal liability for direct misconduct remains central.

Liability for actions by corporate bodies and representatives

Liability for actions is of particular importance in the area of liability of corporate bodies of companies and liability of representatives in both internal and external relations.

liability of corporate bodies

Corporate bodies of legal entities, in particular managing directors and board members, are subject to a special duty of care toward the company. Breaching this duty triggers liability pursuant to Section 43 GmbHG or Section 93 AktG.

• Internal liability: Compensation to the company for breaches of duty.
• External liability: Liability toward third parties, especially for tortious acts.

liability of representatives

Representatives acting on behalf of another person are generally not personally liable. A personal liability will nonetheless arise if

• they act in their own name or
• commit a tort (see Section 831 BGB, liability for vicarious agents).

Liability for actions in employment law

In employment law, special rules apply to liability for actions, particularly with respect to employee liability. Differentiated standards are applied here, graded according to negligence and intent.

• Slightest negligence: As a rule, no liability.
• Ordinary negligence: Apportionment of damage (proration) between employee and employer.
• Gross negligence and intent: Full liability of the employee.

The so-called privileged liability for actions in employment law takes into account the fact that employees are exposed to heightened liability risks while performing company duties.

Liability for actions in business life and entrepreneurial decision-making

Liability for actions is also of paramount importance for companies and management personnel. It is governed in particular by duties of care, organizational duties, and monitoring responsibilities (see, for example, Section 91 AktG regarding the supervisory duty of board members).

• Liability of company management: Corporate officers are liable if they fail to take reasonable measures to avert risks.
• Compliance violations: Personal liability arises in the event of violations of legal or internal company rules.

Delimitation from other types of liability

Die Liability for actions is distinct from other types of liability, particularly strict liability and condition-based liability,. While the latter are based solely on a certain condition or risk situation (e.g., owner’s liability in road traffic), liability for actions requires a substantiated attribution of an actual action (act or omission) to the damage caused.

Liability for actions in an international context

Liability for actions is also relevant in international private law, such as in cases with a foreign element. The decisive factors here are the applicable law (national tort law, CISG, as well as European directives, e.g., product liability) and international jurisdiction.

Legal protection and limitation periods

Claims arising from liability for actions are subject to the general civil law limitation regime. In tort law, a three-year limitation period usually applies (Section 195 BGB), starting from knowledge of the damage and the damaging party (Section 199 BGB). Special rules can be found in product liability law, employment law, and other special areas.

Conclusion

Liability for actions constitutes a central mechanism in German liability law and is fundamentally important in numerous areas of law. It ensures that individuals can be held accountable for damage caused by their own conduct. The legal structure varies depending on the area of application, particularly with regard to the requirements, standard of liability, and scope. Precise knowledge and nuanced application are essential for understanding, assessing, and, if necessary, managing liability risks.

Frequently asked questions

Which legal provisions govern liability for actions in Germany?

Liability for actions in Germany is regulated in various laws, in particular in the German Civil Code (BGB). The key provisions are those governing torts (Sections 823 et seq. BGB), according to which anyone who unlawfully, intentionally or negligently, injures the life, body, health, freedom, property, or another right of another is obliged to compensate the other for the resulting damage. Provisions on liability for actions are also found in the Criminal Code (StGB), the Product Liability Act (ProdHaftG), as well as special liability provisions, for example in company law or employment law, particularly when it concerns the liability of corporate bodies or senior employees. The legal assessment depends largely on the context in which the tort occurs and which interests and rights are affected.

How does liability for one’s own conduct differ from liability for the conduct of others?

Liability for one’s own conduct is the rule under German law; this means that every person is liable for actions they have performed, in accordance with general tort law provisions. Liability for the conduct of others (so-called “vicarious liability” for third parties) only applies under certain legal conditions, such as liability for performing agents under Section 278 BGB or vicarious agents under Section 831 BGB. For example, in employment, employers are liable for damage caused by their employees during the course of their work, provided they act as performing agents. Liability arising from organizational failings or a guarantor position can also result in responsibility for the actions of others. In all cases, there must be a legal attribution of the third party’s conduct to the person held responsible.

What role does fault play in liability for actions?

For tortious liability for actions, fault – that is, intent or negligence – is generally required, unless the law imposes strict liability, for which fault is not relevant (e.g. in product liability law or liability under the Road Traffic Act). The degree of fault affects not just the existence but also the extent of liability. Negligence means an individual fails to use the care required in the circumstances; the law distinguishes between ordinary, gross, and slight negligence. Intent means the person knows and wants the damaging consequences. The burden of proof for fault is usually on the injured party; however, there are certain situations where the burden of proof may shift, e.g., when safety obligations are breached or in cases of organizational fault.

Can liability exclusions or limitations for one’s own conduct be agreed?

In principle, it is possible to exclude or limit liability for certain acts through contractual agreements. However, there are significant restrictions under German law: According to Section 276(3) BGB, an exclusion of liability for intentional actions in general terms and conditions (AGB) is ineffective. There are also restrictions in cases of gross negligence, especially in regard to the control of AGB under Sections 307 et seq. BGB. In some areas of law (for example, in employment law or in connection with injuries to life, body, or health), limitations of liability are practically excluded or only permissible to a very limited extent. Individual contractual exoneration clauses must be examined for their validity on a case-by-case basis.

What significance does the limitation period have in liability for actions?

Limitation statutes play a central role in the enforcement of claims arising from liability for actions. According to the general tort law rules of the BGB, the limitation period for claims arising from a tort is generally three years (Section 195 BGB). The period begins at the end of the year in which the claim arose and the injured party became aware of the circumstances giving rise to the claim and the person of the tortfeasor, or should have become aware without gross negligence (Section 199 BGB). In certain cases, such as personal injury or environmental liability, longer or absolute limitation periods may apply. After the limitation period expires, the debtor may refuse performance and liability for actions is excluded to this extent.

Does personal liability of executives or bodies exist for their conduct?

In company law, executives and bodies, such as managing directors, board members, or supervisory board members, are generally personally liable for breaches of duty in their official capacity whenever statutory or constitutional obligations are violated. The basis for this is, for example, Section 43 GmbHG for managing directors and Section 93 AktG for board members. Liability covers culpable conduct as well as failing to carry out actions that would have been required for the protection of the company. Liability can exist both towards the company itself (internal liability) and towards third parties (external liability), whereby in the latter case, a tortious cause of action is necessary.

How does civil liability for conduct differ from criminal consequences?

Civil liability for conduct primarily serves to provide financial compensation for damage suffered or to remedy a disadvantage on the part of the injured party. Claims for damages are the main focus in this area. The criminal consequences of a damaging act are independent of this and involve the sanctioning of the wrongdoer by state penalties, such as fines or imprisonment, based on criminal offenses (e.g., bodily injury, fraud). Civil liability may also exist even if criminal investigations do not lead to a conviction, as the requirements for a claim differ (e.g., standard of proof, requirements for fault). In practice, identical conduct often gives rise to both civil and criminal liability.