Das Deliktrecht spielt in der Praxis von Erstversicherern eine besondere Rolle. Es ist nicht nur Grundlage für alle Policen, die Haftpflichtrisiken decken. Auch bei jedem Versicherungsfall in der Schadenversicherung muss der Bearbeiter die Regressfrage prüfen (§ 86 VVG). Der siebte Beitrag aus der Reihe "Versicherungsenglisch für Versicherungsvermittler" ist daher für alle nützlich, die über erste Grundlagen des Deliktsrechts aus deutscher Sicht in Englisch informieren möchten.
Liability law
What do we understand by liability?
Financial responsibility that a person or organisation has for loss, damage, or injury caused to others.
What legal basis (’beisis)/ bases (’beisi:z, pl) can you imagine to enforce/ demand liability claims?
- a contract, e.g. liability provisions in a sales contract, such as any Incoterms stipulated/ agreed upon
- civil law, e.g. article 823 Civil Code if Geman law applies
- common law or case law, e.g. England, US - mainly
How can article 823 Civil Code be translated into English? (Liability for damages through one’s own fault)
"A person who, intentionally or by his negligence/ carelessness, unlawfully causes death or injury or impairment of the health, freedom, property or other rights of another is bound to compensate him for any damage arising therefrom."
What does vicarious liability mean for employers? (Distinguish between the accountability of the vicarious agent and the liability of an employer for acts of its employees!)
Vicarious liability refers to a situation where someone is held responsible for the actions or omissions of another person.
In a workplace context, an employer can be liable for the acts or omissions of its employees, provided it can be shown that they took place in the course of their employment (e.g. article 278* or 831** Civil Code).
We distinguish between fault-based liability and strict liability. Please describe typical features.
Fault-based liability:
- A causer can only be made liable if they acted negligently/ carelessly/ culpably.
- The burden/ onus of proof lies with the claimant.
Strict liability:
- The causer is liable regardless of fault.
- A proof of exoneration/ evidence for the defence is possibly permitted, e.g. in case of force majeure (§ 7 StVG German Road Traffic Act).
- The burden of proof lies with the causer.
Could you give any examples of strict liability cases in Germany?
motor liability, dog owners’s liability (section 833 Civil Code), product liability, owners of heating oil tanks, ...
What about the liability if for example two vehicles are involved in an accident?
In such cases it must be established whether liability has to be split on a percentage basis [contributory negligence (sect. 254 Civil Code) resp. contributory causation (’co-involvement’) if strict liability applies].
What do we try to find out if we ask in case of a liability loss/ claim: "What chain of events took place?"
We try to determine a cause that directly produces an effect; a cause that is legally sufficient to result in liability (causal connection, causality, proximate cause).
Distinguish between Compensatory damages and Punitive damages.
Depending on Anglo-American jurisdiction, the damages awarded are intended to put the victim in the position they would have been in, had the tort not occurred (Compensatory damages), or to punish a wrongdoer (Punitive damages).
*Erfüllungsgehilfe = person employed by the debtor in the performance of his/ her obligation
**Verrichtungsgehilfe = vicarious agent
Glossary
vicarious liability = Haftung für fremdes Verschulden
fault-based liability = Verschuldenshaftung
strict liability = Gefährdungshaftung
chain of events = Ereigniskette
The author
After many years working in the insurance business (mainly in the non-life sector) and being involved in various teaching activities and projects dealing with textbooks, Dieter Aigner has gathered additional experience as an English trainer on behalf of BWV Rhein-Main since 2009.
Autor(en): Dieter Aigner
