Definition and Fundamentals of Pre-existing Condition Liability
Die Pre-existing Condition Liability is a term from German law, particularly relevant in the context of civil liability and damages law. It describes the liability of a tortfeasor for damages suffered by a person with a pre-existing condition, when an existing but perhaps latent or compensated previous injury is triggered, worsened, or made evident by a subsequent act. Pre-existing condition liability means that the tortfeasor is liable for the full occurrence of the damage, even if the progression of the damage was largely caused by an earlier (pre-existing) physical or material impairment of the injured party.
Historical Development of Pre-existing Condition Liability
In German civil law, the practice of pre-existing condition liability primarily developed through case law, with roots in the 20th century. With the emergence of complex patterns of damage, particularly in personal injury liability, the issue of how to handle ‘atypical’ courses of damage in persons with pre-existing conditions became relevant. The development was significantly shaped by the principle that the ‘weak’ in legal relations must also be protected, and that the tortfeasor should not benefit if the victim suffers greater harm due to individual constitution.
Legal Classification
Statutory Foundations
There is no explicit statutory provision for pre-existing condition liability in German law. The fundamental principles are derived from the following provisions:
- § 249 BGB (Compensation for Damages – Nature and Extent)
- § 823 (1) BGB (Duty to Compensate Damages)
- § 846 BGB (Contributory Fault of the Injured Party in Third-Party Harm)
- § 254 BGB (Contributory Fault)
Pre-existing condition liability is applied with the help of the general doctrine of adequate causation, the protective purpose of the rule, as well as the principle of the so-called ‘causality theory’.
Requirements of Pre-existing Condition Liability
For pre-existing condition liability to be established, the following requirements must be met:
- Current causation of damage by a liability-triggering event (e.g., accident, bodily injury, property damage)
- Existence of a health-related or material pre-existing condition in the injured party, which is causally connected to the damage that has occurred
- Aggravation, exacerbation, or discovery of the pre-existing condition due to the damage-causing event
- Causality between the conduct of the tortfeasor and the (overall) harm incurred
Example
If a person with a pre-damaged spine suffers paraplegia as a result of a car accident, the person causing the accident is liable for the full consequences, even if this damage would not have occurred in a healthy person.
Distinction from Other Liability Facts
Direct and Indirect Causation of Damage
In pre-existing condition liability it is important to differentiate whether the injury would have occurred independently of the pre-existing condition or was significantly influenced by it. In principle, the tortfeasor bears the risk of unforeseeable damage scope due to individual characteristics of the injured party (‘victim principle’ or ‘personal damage theory’).
Contributory Fault of the Injured Party (§ 254 BGB)
Contributory fault can only be assumed if the injured party actively contributed to the occurrence of the damage. A mere health-related pre-existing condition alone is generally not attributed to the injured party as contributory fault.
Susceptibility of the Injured Person (‘Previous Damage’)
From a legal-dogmatic perspective, pre-existing condition liability is distinguished from the so-called ‘previous damage’ or ‘susceptibility’, where already impaired structures or health conditions of the injured party are merely revealed or accelerated by the tortfeasor’s action.
Scope and Limits of Pre-existing Condition Liability
Scope of Liability
The tortfeasor is liable for the entire damage even if, due to a special disposition, previous injury, or susceptibility of the injured party, the damage is greater than would normally be expected (‘shock damage’, ‘eggshell skull rule’). The decisive factor is the actual occurrence of the damage in the particular injured party.
Limits of Causality and Attribution
Limits to liability can be drawn where the connection between the damaging event and the resulting damage is merely coincidental or the worsening of the damage is exclusively due to the pre-existing condition and the tortfeasor can no longer be normatively linked to the damaging event. Case law emphasizes here that liability exists at least as long as the injury is ultimately a contributing cause for the aggravation or exacerbation of the pre-existing condition.
Concurrence of Multiple Causes
If additional factors (e.g., consequential damage due to deficiency, intervention by a third party) occur after the damage-triggering event, a so-called ‘essential contributory causation’ is required within the framework of damage attribution. Minor (‘outside’) causes do not necessarily interrupt liability.
Typical Areas of Application
- Personal Injury Law (Traffic accidents, medical malpractice, bodily injury)
- Tort Law Liability
- Product Liability
- Traffic Liability and Strict Liability
- Property Damage with Prior Use or Previous Damage
Especially in the context of damage compensation proceedings involving medical or medico-psychological expert opinions, the issue of pre-existing condition liability is regularly the subject of examination.
Comparative Law and International References
In other legal systems, such as Anglo-American common law, the principle is discussed under the so-called ‘eggshell skull rule’ or ‘thin skull rule’. There too, the tortfeasor must ‘take the victim as he finds him’ and is liable for special damages even in cases of special susceptibility.
Burden of Proof and Practical Implementation
The burden of proof for the existence and scope of the pre-existing condition generally lies with the tortfeasor, insofar as he relies on it (§ 286 ZPO, principle of secondary burden of proof). Regarding the triggering or aggravation of the pre-existing condition by the damaging event, the proof usually lies with the injured party.
In judicial practice medical expert opinions are frequently obtained to objectively determine the causality between the pre-existing condition and the damage as well as their scope.
Summary and Significance
Pre-existing condition liability ensures comprehensive compensation even in cases where previous injuries or health conditions influence the extent of the damage. It guarantees that the tortfeasor does not benefit from the injured party’s special risks. However, its application is limited by principles such as contributory fault, attribution theory, and causality, so careful examination of each individual case is always required.
References
- Brox/Walker, General Law of Obligations
- Palandt, German Civil Code, § 249, marginal nos. 16 ff.
- Medicus/Lorenz, Law of Obligations I
- BGH Decisions on Pre-existing Condition Liability
See Also
- Contributory Fault
- Causality Theory
- Damages
- Adequacy Theory
Frequently Asked Questions
What obligations does the purchaser have under pre-existing condition liability?
The purchaser of a property is liable under pre-existing condition liability for certain public-law liabilities that rest on the property and whose origin dates back to a time before acquisition. This liability arises in particular from federal and state regulatory provisions such as § 9 (1) GrStG (property tax) or corresponding provisions in construction and contribution law. Accordingly, the purchaser is obliged to pay all public charges encumbering the property, such as property tax or development contributions, even if these arose before the transfer of ownership but were only assessed or became due afterwards. The obligations in particular include careful examination of existing charges prior to acquiring ownership and timely payment of any claims to avoid late charges or enforcement measures.
How can the purchaser protect themselves from unwelcome claims arising out of pre-existing condition liability?
An important protective mechanism consists of comprehensive due diligence and careful contract drafting. Even before concluding the purchase contract, the purchaser should obtain certainty about existing and potential public charges by inspecting the land register, making inquiries with the local authority, and obtaining corresponding certificates. Contractually, it can be agreed by way of warranties and indemnification clauses that any contributions or charges incurred before acquisition will be borne and settled by the seller before transfer of ownership. It is also advisable to explicitly include due date shifts and already resolved but not yet implemented contribution notices in the purchase contract to forestall later disputes or claims for payment.
Do private claims also fall under pre-existing condition liability?
No, pre-existing condition liability applies exclusively to public-law claims and charges. Private claims by third parties – such as those arising from civil contractual relationships, such as rent arrears or private loans affecting the previous owner – do not generally transfer to the purchaser. The only exception is private encumbrances which, due to registration in the land register as real rights (e.g. land charge, mortgage), are secured. In such case, however, the purchaser is not liable due to pre-existing condition liability but rather due to assumption of the registered encumbrance.
Is there a time limit for the purchaser’s liability?
In legal terms, pre-existing condition liability is connected to the creation of the contribution debt and partly to the announcement of the assessment notice. The decisive factor is when the actual obligation to pay arises. If this already exists before acquisition of ownership but the respective notice is only sent afterwards, the purchaser as the current owner is obliged to pay. There is no general statutory limitation period for the liability, but the claim may lapse by prescription. The time limits for public-law claims here are those in accordance with § 228 AO (Fiscal Code), or the relevant state limitation provisions, usually three to four years from due date.
For which types of charges does pre-existing condition liability typically apply?
Pre-existing condition liability primarily concerns property taxes, development contributions, road improvement contributions, and other municipal charges that, according to public law, encumber the property. These include, for example, contributions under the Municipal Charges Act, waste water and water connection charges, but also local resident costs for street lighting or costs for road construction. The decisive factor is always whether the respective law provides for liability of the owner for the property also with retroactive effect.
What happens if several elements of pre-existing condition liability arise simultaneously?
If various public-law charges have arisen on a property, the purchaser is generally liable for all claims that have not yet been settled, provided the respective legal requirements are fulfilled. Municipal authorities can assert their claims collectively or enforce them individually. The purchaser may, under certain circumstances, have a right of recourse against the seller if the latter has fraudulently concealed the existence of these charges or breached a corresponding guarantee. The priority of multiple claims is determined according to the respective legal provisions, such as by the priority of their origin or the notification of the assessment notice.
