Kammergericht Berlin
9 U 2200/99
28 O 272/98 Landgericht Berlin
06 April 2001
Professor B.S. Markesinis


The claimant as liability insurer of a dog owner demands from the defendant (by way of a settlement between joint debtors) the reimbursement of half its expenses in respect of the material and non-material harm suffered by the defendant's wife on the 6th December 1992 at the Grunewald Lake in Berlin in an accident, the details of which are disputed, which involved dogs belonging to the claimant's policy holder and the defendant. It is at least true that the defendant's wife was made to fall by the behaviour of the claimant's policy holder's dog, as a result of which she suffered a fracture of the head of the tibia and of the head of the fibula of the left leg.

The Landgericht ordered the defendant to pay 26,717.66 DM and rejected the rest of the claim…

The defendant by his appeal pursues his demand for complete rejection of the claim. He considers that the spouse's privilege in § 1359 of the BGB was evaded by the decision of the Landgericht. The principle of protection of the family was turned into the opposite…

The defendant applies for
the alteration of the judgment under challenge by the Berlin Landgericht of the 10th February 1999 insofar as it gives judgment against the defendant and the dismissal of the claim to that extent.

The claimant applies for
the rejection of the appeal
and considers the judgment under challenge to be legally correct…


The defendant's appeal is admissible and succeeds in this case.

The claimant is not entitled to the claim which it has made for settlement in accordance with §§ 67 para 1 of the Insurance Contracts Act and 840, 426 paras 1 and 2 and 833 of the BGB.

This is because, on the present facts, a joint debtor relationship between the defendant and the claimant's policy holder in the sense of §§ 840 and 421 of the BGB in relation to a liability under § 833 of the BGB to the defendant's wife did not arise.

It can be left undecided whether and to what extent the defendant's dog and the danger arising from this animal were instrumental in causing the defendant's wife's accident, because realisation of the conditions of liability in § 833 of the BGB is prevented by the regime of § 1359 of the BGB. The prerequisites of this provision are present. The victim is the defendant's wife. The defendant cannot be accused, in relation to the causing of the accident, of violating the standard of care which he usually applies in his own affairs. The simple fact that the defendant, by letting his own dog loose from the lead to play with the claimant's policy holder's dog, exposed himself in the same way to the danger of injury from the dogs playing, which in the end happened to his wife, shows that he has not disregarded the standard of care to be applied here in one's own affairs.

§ 1359 of the BGB must also be applied to a case of strict liability in tort with the result that no claim arises against the spouse. According to the case law of the Bundesgerichtshof, the limiting of contractual liability to certain forms of obligation means that liability under the stricter provisions of tort law cannot arise from the same act (reference omitted), because the special standard of liability could thereby be largely rendered ineffective. The same must apply when the exclusion of liability is not based on a contractual foundation, but arises directly from a statutory regime. If liability for simple negligence is excluded by the statutory regime, this must be all the more so when a situation occurs which gives rise to strict liability without fault. The application of § 1359 of the BGB to every type of tort is also extensively supported in the academic literature (references omitted).

If it were otherwise, in the case of infliction of harm by an animal, a contradiction of values would arise from the fact that the spouse who, as the keeper of an animal, causes this harm to the other spouse through slight negligence would not be liable, but he would be liable when fault was not present. The spouse acting without fault would then be liable in exactly the same way as the one who causes harm to the other spouse by means of his animal intentionally or with gross negligence. This contradiction in values cannot be eliminated by the non-application § 1359 of the BGB in the case of a situation giving rise to strict liability. Admittedly, on the application of § 1664 of the BGB the view is held by some that the regime ought not to be applied to a case of strict liability under § 7 of the Road Traffic Act (StVG) if a third party is to blame for an accident as the driver of a vehicle (reference omitted). But no detailed reasons are given for this view and it is not applicable to the present case.

The sense and purpose of § 1359 of the BGB argue in favour of an exclusion by that provision of strict liability under § 833 of the BGB. The application of an individual standard of liability in the sense of § 1359 of the BGB is supported because the spouses should accept each other as they are, that is to say with all the characteristics with which they have married each other. Included in these personal characteristics, however, is the wish of a spouse to keep a pet and to accept the risk which arises from the unpredictability of an animal, which is a typical animal risk. Taking such a risk of harm - even if not giving rise to the accusation of fault - is a question of the individual standard of care and, within the framework of a marriage, requires the application of § 1359 of the BGB.

The argument that a strict liability regime would exclude the acceptance of an individual standard of care is not inconsistent with an exclusion of the liability for keeping animals by one spouse against the other. This is because the comparison which has been referred to with the case law about road traffic accidents, in which there is no room for individual standards of care because of the duty to observe road traffic provisions strictly, is in this respect misplaced. In taking part in road traffic, in the duty of supervision and in the fulfilment of a duty of care owed to people in general (Verkehrsicherungspflicht), there can in principle be no "own affairs", and no standard of care subject to individual variation for those under a duty. This is due to the fact that traffic rules and the duty of supervision must always be observed and the duties arising from starting an activity or a responsibility for a place of danger must always be fulfilled as against all third parties. They must therefore be observed in the same way in relation to a spouse. In relation to the liability of the keeper of an animal, it is not however a question of observing certain forms of conduct, but of an allocation of the risk that the danger from the animal materialises independently of fault. As the keeping of an animal does not necessarily cause the possibility of danger to a third party from the animal to materialise, because not every animal inevitably comes into contact with other people, room remains for an individual standard of care and an exclusion of liability in the case of absence of fault or where simple negligence is present. The fact that in the present case the danger from the defendant's dog has materialised in public and in connection with the danger from another dog is coincidental, and therefore not a circumstance appropriate to exclude the application of § 1359 of the BGB. On the above grounds the argument that the spouse harmed by an animal belonging to the other spouse ought not to be disadvantaged in comparison with other persons only by the existence of the marriage cannot succeed. This is because this unequal treatment is the intended aim of the legislator and constitutes the essential feature of the provision. The statutory appraisal cannot be used as an argument against this.

The argument in favour of a restrictive application of § 1359 of the BGB that claims against insurance liability of the other spouse should be secured for the spouse suffering harm, does not apply here, because the liability insurance concluded by the defendant for harm caused by his dog excludes claims by the wife. Therefore no reference can be made to the fact that § 1359 does not aim to favour one insurer against the other (reference omitted). This is because, in contrast to the position in relation to harm for which liability arises in road traffic, as to which in cases of compulsory insurance (which also includes the regulation of harm to the occupants of a vehicle) two liability insurances are as a rule involved if an accident occurs through fault on both sides, such compulsory insurance does not exist for the liablity of keepers of animals.

The Bundesgerichtshof propounded the view in its decision of the 1st March 1988 (reference omitted) on the provisions of § 1664 of the BGB that a joint debtor relationship does not arise where there is a restriction of liability, because of the absence of attributable participation of the parents in the event causing the harm. There is no materialisation of the circumstances giving rise to liability. The application of these principles established for § 1664 of the BGB is also required for the regime of § 1359 of the BGB (reference omitted), because the wording and general purpose of the provisions are identical. The Bundesgerichtshof has in the decision referred to also expressly abandoned its view propounded on § 1359 of the BGB in the decision (reference omitted) on a reduction of the claims of the victim against the non-privileged wrongdoer. This shows that it does not regard a difference in the application of the provisions as justified. A duty by the defendant to provide compensation did not therefore arise as there is no joint debtor relationship with the claimant's policy holder.

The subsidiary decisions are based on §§ 91, 708 no. 10, 711 and 546 (2) of the ZPO.