BGHZ 39, 358 III. Civil Senate (III ZR 48/62) = NJW 1963, 1821 = JZ 63, 707 = VersR 1963, 973
27 May 1963
Professor B.S. Markesinis
with a critical note by H. H. Rupp = VersR 1963, 973

The plaintiff site-owner claimed damages from a local authority which had issued a building permit without adequately checking the architect’s calculations regarding the load-bearing capacity of the foundations, as marked on the plan. Because of this error, the building collapsed while in process of construction, and both the builder and the architect were insolvent.

The plaintiff’s claim was dismissed by the trial court and his appeal was also dismissed for the following


1. The trial court was correct to hold that in checking and authorizing the plans for the building, the supervisory authorities are exercising a governmental function. In consequence, as the Appeal Court agrees, the plaintiff’s claim against the defendant can only be based on the rules relating to the liability of officials (§ 839 BGB in connection with Art. 34 GG); it must be shown that one of the defendant local authority’s officials in the exercise of the public function attributed to him was in breach of an official duty which he owed to the plaintiff . . .

2. In approaching the question whether, in giving building permission when it should not have done so, the local authority was in breach of official duties owed to the plaintiff, the trial court correctly started by considering the purpose served by the official duty [reference]. In the first instance, official duties are imposed in the interest of the State and the public. If the sole function of an official duty is to promote public order, the general interest of the commonwealth in orderly and proper government, the satisfaction of exigencies within the service, or the maintenance of a properly organized and functioning administration, then there is no question of any liability to third parties for its breach, even if its exercise has adversely affected them or their interest. Liability exists only where the official duty which was broken was owed by the official to the third parties themselves. Whether this is so and how wide the range of protected persons may be are questions which must be determined in accordance with the purpose served by the official duty. This purpose is to be inferred from the provisions on which the official duty is based and by which it is delimited, as well as from the particular nature of the official function in question. If, in addition to satisfying the general interest and public purposes, the official duty has the further purpose of safeguarding the interests of individuals, this is sufficient, even if the affected party had no legal claim that the official act in question be undertaken (BGHZ 35, 44, 46–47; BGH VersR 1961, 944).

Before a building permit is issued, the plans must be checked for conformity with all building regulations of public law (§ 2 II Provincial Building Ordinance). Such an investigation must encompass the structural safety of the building (§ 15 I e, § 61 Provincial Building Ordinance); as the Court of Appeal was right to emphasize, with reference to Pfundtner/Neubert [reference omitted], concern for safety is one of its most important aims, since unsafe buildings pose a direct threat to life and health, the value of physical property and safe conduct of business. The supervision of buildings thus permits the avoidance of dangers (BGHZ 8, 97, 104; see Baltz/Fischer, Preussisches Baupolizeirecht I ff.). The provisions requiring the verification of the calculations concerning the load-bearing capacity of buildings are directed to the dangers which threaten the public from the collapse of unsafe constructions. While these provisions and the official duties which they impose serve the protection of the public—the ‘public interest’ (Baltz/Fischer, ibid.)—they also protect every individual member of the public who might be threatened by its unsafe condition, that is, every person who comes into contact with the building as inhabitant, user, visitor (RG Recht 1929 no. 757, SeuffArch 83 no. 134; JW 1936, 803, BGHZ 8, 97, 104), neighbour (BGH VersR 1956, 447), passer-by (LM to BGB § 839 Fe no. 1), or workman, and who relies on its being safe. The owner or developer may also be a beneficiary of this protective function if he suffers damage to his body, health, or property as a result of a collapse while he is visiting the building or inhabiting it, but only if the harm is a consequence of the danger from which it is the function of the official verification of the technical specifications to protect the public and hence the individual endangered. That is not the case here. It is true that the plaintiff has suffered damage as a result of the collapse of the building, but he is not a victim of the danger from which, as a member of the public, he was entitled to be protected by the official duties and the provisions which created them, since it was only the building itself and no other property of his which was damaged.

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