BGHZ 116, 104 VI. Civil Senate (VI ZR 11/91) = NJW 1992, 1039 = JZ 1993, 671
19 November 1991
Professor B.S. Markesinis


After the wedding breakfast held at the second defendant’s restaurant on 29 July 1989, the plaintiff and some of the 54 guests suffered from salmonella poisoning. Germs of salmonella enteritis were later found not only in the vanilla ice-cream but also in the pudding and custard prepared the previous evening by the first defendant and her daughter, who were found to be carriers of salmonella. The plaintiff claimed back the DM 3,000 she had paid the second defendant for the wedding feast; from both defendants she claimed damages for pain and suffering in the amount of DM 1,500 and a further DM 800 because the start of the honeymoon was delayed for four days by reason of the illness.

The Landgericht held both defendants jointly and severally liable for DM 1,500 as damages for pain and suffering, but rejected the rest of the claim. All parties appealed to the Oberlandesgericht, which ordered the second defendant to repay the DM 3,000 paid for the wedding feast, but rejected the rest of the claim. On the plaintiff’s appeal the decision rejecting the claim for damages for pain and suffering against the second defendant was vacated. The second defendant’s ancillary appeal was rejected.


A. [Procedural.]

B. The court below dismissed the claim for damages for pain and suffering against both defendants.

It held that the first defendant was not liable under §§ 823 I, II BGB in conjunction with § 230 Criminal Code and/or § 8 LMBG for serving meals contaminated with salmonella, because the plaintiff could adduce no proof that the first defendant was at fault. According to the experts’ reports, there were three ways the salmonella could have got into the pudding: from the hands of the salmonella-carriers, from the equipment used in making the pudding or from the ingredients used, especially the eggs. It could be neither proved nor disproved that the salmonella got into the pudding from the hands of the first defendant or her daughter. The rules regarding the burden of proof in cases of product liability did not affect the first defendant since she was not the owner of the restaurant. Nor did they affect the second defendant, since they are inapplicable to the owners of small family businesses, where proof of the subjective elements of delict is not particularly difficult: it is relatively simple to make a pudding and to understand how it is made. Furthermore, the plaintiff could sue the second defendant on the basis of the contract between them. The second defendant could not be made liable under § 831 BGB, for he had shown that he was free from fault as regards the conduct of his wife and daughter. As against this, the claim that the second defendant return the money paid for the wedding feast was allowed on the basis of § 635 BGB. The second defendant had failed to prove that neither he nor any of those who helped him perform the contract were responsible for the salmonella, for it was possible that his wife or daughter had been salmonella carriers before they started to prepare the pudding, and should therefore have washed their hands more carefully. Although there was nothing wrong with the rest of the meal and only a few of the guests were rendered ill, the entire sum paid could be reclaimed since the feast was to be regarded as a single event.

The court below rejected the claim for damages in respect of the lost honeymoon as not representing an economic loss.

II. The plaintiff’s appeal.

1. The plaintiff’s appeal from the dismissal of his claim for damages for pain and suffering against the second defendant is justified (a), but the court below was right to reject the similar claim against the first defendant (b).

(a) The second defendant’s liability. The reasons given by the court below for denying the second defendant’s liability for the immaterial harm suffered by the plaintiff are not good in law.

(aa) In providing food infected with salmonella, the second defendant as owner of the restaurant contributed to the injury to the plaintiff’s health. Liability under §§ 823 I, 847 BGB must therefore be considered, as it was by the court below. It is a precondition of liability under these provisions that the defendant be chargeable with some fault. The burden of proof of fault normally lies on the victim, but in the area of product liability the Bundesgerichtshof has developed the exceptional principle that if a product is defective when he puts it into circulation the producer must establish and prove by evidence that he was not at fault as regards the defect in the product which harmed the consumer (BGHZ 51, 91 [103 ff.] = NJW 1969, 269; BGHZ 80, 186 [196 ff.] = NJW 1981, 1603). For the purposes of product liability the second defendant was unquestionably the producer of the meals prepared in his restaurant, so the application of this principle falls for consideration. This is not a case, to use Brüggemeier’s words (VersR 1983, 116 ff.) of ‘transferring the rules of product liability to the providers of services’, for the wedding feast involved much more than the mere provision of services: services were indeed involved, but the main thing was the supply of the meals.

When the burden of proof in the area of product liability was first reversed in the so-called ‘chicken-pest’ case (BGHZ 51, 91 = NJW 1969, 269), the Bundesgerichtshof took into account the evidentiary difficulty which a plaintiff normally faces in a suit against a manufacturer. The court based its reversal of the burden of proof on the fact that since the producer oversees the sphere of production and organises the production process and quality control, he is in much the better position (‘näher dran’) to explain what actually happened and to bear the consequences of lack of proof. If the cause of the lack of explanation falls within the producer’s area of responsibility, it seems appropriate and fair under these decisions that he bear the risk of being unable to prove that he was not at fault (BGHZ 51, 91 [105] = NJW 1969, 269; for comparable conflicts of interests, see BGHZ 67, 383 [387] = NJW 1977, 501, etc.)

(bb) In the ‘chicken-pest’ case, which certainly involved industrial production, the court deliberately left open the question whether the risk of inability to disprove fault should also be imposed on the owner of a small business—a family operation or one-man concern—where the methods of production are uncomplicated and simple to understand. In its judgment of 30 April 1991 (BGHZ 114, 284 = NJW 1991, 1948—Aids) the court again declined to decide whether the principle as to proof applies only to industrial mass production, but it did hold it applicable in a case where an infusion solution for use in a hospital became un-sterile either during or after the preparation (BGH NJW 1982, 699), and the Eighteenth Civil Senate of the Oberlandesgericht Frankfurt has applied it in a case, rather like the present, of a gypsy salad infected with salmonella in a restaurant (19 February 1979, VersR 1982, 151).

Writers are divided on the question, but by far the majority opinion is that in cases like the present, the burden of proof should be reversed [references]. This court is of the view that there is no compelling reason to exempt small businesses such as personally-run restaurants and cafés from the evidential burden.

The underlying idea which gave rise to this reversal of proof in cases of product liability, namely the consumer’s ignorance of how the producer manufactures his products or organises his business, is of general application, whether the business is big or small, the method of production industrial or personal. It is quite true that what happens in a family-run café is more easily understood than what goes on in a factory geared to mass production. It is also true, as the court below noted, that making a pudding is quite a simple operation calling for no specialist knowledge, comprehensible even by the injured customer. But that does not alter the fact that production takes place in the owner’s area of control, and that the restaurateur can monitor the process more easily than the customer. He is in the better position to discover and investigate sources of error. The consumer is an outsider who is normally in no position to know how individual dishes are prepared, what ingredients the patron uses or where he obtains them, nor can he tell what steps are taken to maintain hygiene in the kitchen. Given these considerations, it seems right and fair to put on the second defendant the burden of disproving fault.

This court is well aware that it may seem harsh to place the burden of proof on small businesses which cannot be expected to have the same facilities for control as a big industrial concern, but this difference is largely offset by the fact that it is much easier for the owner of a small business than for the manager of a large industrial concern to oversee its organisation, to discover any faults in the system of production and to adduce the necessary proof.

Another consideration is that there are no really satisfactory criteria for distinguishing sensibly between large and small and middle-sized businesses. To go by the number of employees would lead to capricious results, especially as there is often little relation between the size of the workforce and the structure of the enterprise. Indeed, in family and one-man businesses it is often immaterial whether any person outside the family is employed or not.

The Product Liability Act of 1 January 1990, based on principles applicable throughout the EC, does not draw any distinction between large and small businesses or make liability turn on whether the production is industrial or personal [references]. To draw such a distinction in claims for immaterial harm which are not covered by the Act and still fall under § 823 BGB would not be right.

(cc) The court below gave a further reason for not reversing the burden of proof in this case, namely that the plaintiff had a contractual claim against the ‘producer’. This is an error. The Bundesgerichtshof decided in the ‘Schwimmerschalter’ case (BGHZ 67, 359 [362 f.] = NJW 1977, 379) that the reversal of the burden of proof is not excluded by the mere fact that consumer and producer were in contractual relations; to hold otherwise would lead to unacceptably capricious results, as it is often a matter of mere chance whether there is any contract between the victim and the producer, whether any contractual claim has prescribed (§§ 477, 638 BGB) or whether a contractual claim would be barred by an exclusion clause. Cases in the Supreme Court have consistently held that claims in contract and tort co-exist, each following its own rules (BGHZ 67, 359 [362] = NJW 1977, 379; BGHZ 86, 256 [258] = NJW 1983, 810). In the present case, the reversal of the burden of proof in tort cannot depend on whether the plaintiff or other wedding guests have contractual claims for damages against the second defendant.

The court below was therefore wrong to hold that the plaintiff had the burden of proving that the second defendant failed to show the care required by the circumstances. It should rather have inquired whether the second defendant had managed to exculpate himself.

(dd) The mere fact that the food provided for the wedding guests was infected with salmonella does not of itself demonstrate any fault on the part of the second defendant. As has been said, the court below was unable to determine how the salmonella got into the pudding and custard, in which it was undoubtedly present, whether from the eggs or some other source. In particular, it is not known whether or not the first defendant and her daughter were already carriers of salmonella when they prepared the pudding. Infection from the kitchen equipment, according to the court below, ‘could be ruled out’, but there is the possibility that the salmonella got into the pudding from ingredients bought in by the second defendant.

In such a case, what matters is what steps the second defendant took to ensure a properly hygienic method of preparation. On this point the court below found, in connection with another matter, that the second defendant had exculpated himself, and the appellant does not question this. But the court below did not advert to the precautions taken by the second defendant to minimise the use of tainted ingredients, or ask what checks the patron of a restaurant should make on the products he buys in. The duties imposed on the producer and retailer of food products are onerous (constant holding, see BGHSt 2, 384 etc.), but only within the limits of what is possible for the defendant. A small business cannot be treated just like a large one (references). This does not relieve the small café proprietor of responsibility towards his guests: if with the means at his disposal he cannot ensure that the food he serves is wholesome, then he may have to stop serving it. In general, however, if he obtains his supplies from a reliable source, he need go in for quality control only when on the particular facts a test is called for. This matter requires further elucidation on remand.

(b) Liability of the first defendant. The plaintiff’s appeal from the dismissal of his claim for damages for pain and suffering against the first defendant must fail.

(aa) The first defendant cannot be made liable under § 823 I BGB because the plaintiff cannot prove that she was at all at fault in preparing the infected pudding. The mere fact that it was infected does not establish fault. Nor is the burden of proof reversed against the first defendant since she did not own the restaurant and therefore was not the ‘producer’ of the noxious sweet. Only the owner is affected by such reversal: it does not apply to subordinate employees, nor even to all managers, but only to those whose role and position in the firm is such that they can be seen as its representative [references], especially those with a capital stake in the business, such as partners (see BGH NJW 1975, 1827).

(bb) Nor can the first defendant be made liable under § 823 II BGB in relation to § 21 8 no. 1 of the Food Act. Not only is it doubtful whether she can be said to have ‘produced’ the pudding, but there was no proof of fault, as the court below was right to find. The appellant blames the defendant for not using a recipe which would have heated the pudding to over 75¿ and thus have killed all the germs. This does not establish fault. Like the court below, we can leave aside the question whether the risk of salmonella poisoning makes it obligatory for cafés to heat puddings above 75¿, for in view of the possibility that the dishes in which the pudding was placed were infected by the hands of the defendant or her daughter, it was not shown that cooking the pudding as recommended by experts would have prevented the spread of the salmonella. Contrary to the view of the appellant, the fact that there was a breach of § 8 Food Act does not imply any negligence on the part of the second defendant. The decisions do hold that where a protective law has been infringed, it is usually for the defendant to assert and prove facts which repel an inference of negligence (BGHZ 51, 91 [103 ff.] = NJW 1969, 269; BGH VersR 1967, 685; BGH NJW 1985, 1774 = VersR 1985, 452, 453), but this only applies when the protective law is so detailed in its prescriptions that one can properly infer that there must have been negligence (BGH VersR 1984, 270 [271]). If the protective law merely prohibits a stated injurious result, the mere fact that such a result occurs is no indication of negligence.

That is the situation here. § 8 Food Act simply forbids the preparation and circulation of noxious food products. It contains no detailed prescriptions of conduct whose neglect might indicate fault, so one cannot infer any fault on the part of the second defendant from the mere fact of the infraction. It follows that the plaintiff must adduce full proof of the intentional or negligent failure by the first defendant to take the precautions required by the circumstances.

2. The appellant must also fail in her appeal against the rejection of her claim for damages for the delay to the honeymoon. The court below was right to deny that this constituted economic harm. As this court held in BGHZ 86, 212 = NJW 1983, 1107, the pleasure of a holiday foregone owing to personal injury is not to be commercialised, though it may be taken into account as an element of damages for pain and suffering . . .

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