BGHZ 4, 1 III. Civil Senate (III ZR 95/50) = NJW 1952, 418 = VersR 1952, 166
25 October 1951
Professor B.S. Markesinis
Von Mehren and Gordley

The defendant is the owner of an estate. His manager, K, assigned B, a sixteen-year-old agricultural labourer employed on the estate, to transport gasoline. B used a cross-bred horse. The horse bolted and seriously injured the plaintiff.

The defendant contests the plaintiff’s claim on the grounds that the horse had been gentle, B had been a careful driver who was accustomed to driving horses, and the horse had pulled a milk wagon every day and was accustomed to jolting vehicles.

The Landgericht denied recovery, the Oberlandesgericht reversed, and the Revision results in reversal and remand.


The appellate court held that the proof of exoneration required of the defendant had not been made because the defendant had paid no attention to the transport of the gasoline. It held that the defendant has violated the duty of supervision incumbent on him because he himself did not take care that his manager gave adequate instructions to the boy for the particular trip with the cross-bred horse, which was not without its dangers. The appellate court thought it had been demonstrated that manager K told B that he should drive carefully on this trip; however, it is thought that this instruction was not sufficient and that, in view of B’s youth, the disused street, and the use of a cross-bred horse (which, as a matter of common experience, is difficult to ride), K ought to have given more particularized instructions.

In so far as the appellate court derived the liability of the defendant from the fact that he did not personally concern himself with the trip, its opinion cannot be accepted.

In the present case, the manager hired B and supervised his work. He intervened as an intermediate party between B, the worker, and the defendant, the proprietor. According to the decisions of the Reichsgericht, the proprietor of a large enterprise is not to be expected to select and supervise the entire personnel. If a number of persons are employed in a manner such that one is subordinate to another, then the employer’s proof of care extends only to the selection and supervision of the higher employee chosen by him, the manager.

This easier proof for purposes of § 831 BGB is to be permitted, in the Reichsgericht’s view, on the basis of what is equitable and consonant with the section’s purpose. It is certainly true that the employer must institute a system of controls sufficient to guarantee reasonable supervision and conduct of business. Even if only the manager were required to exercise immediate personal oversight of the agricultural labourer, it remains the task of the estate owner to attend to the general regulation of the supervision which provides the guarantee for orderly conduct of the enterprise. If there is a defect in the organizational structure, then the employer is liable for negligence in providing general oversight as required by § 823 I BGB.

Some writers have opposed the Reichsgericht’s basic principles for the liability of large enterprises. They feel that this easier burden of proof is inequitable and inconsistent with the Code. If an intermediary between the employer and the worker is employed, then it should not be sufficient for the employer to prove that he carefully selected and supervised this intermediary, but he should also prove that the intermediary acted carefully in the selection of subordinate employees. If the employer had appointed a legal representative (Vertreter) to make this selection, he would answer for the fault of this representative as though it were his own (§ 278 BGB); otherwise, moreover, one would reach the inequitable result that an entrepreneur with large capital resources could escape liability even though the higher employees were not in a position to pay large damages.

Nevertheless, these objections do not provide a basis upon which the Reichsgericht can discharge its task of deciding cases. Prevailing law distinguishes as to whether the basis for liability for the conduct of employees rests on contractual or on non-contractual principles. If the provisions of § 278 BGB, which pertain to contractual liability, are applicable in a variety of cases involving relationships similar to contracts, such as the public law responsibility for the safekeeping of objects (Verwahrungsverhältnis), it is still not possible to expand these provisions to cover the case of tortious liability for which the code has expressly provided the particular dispositions of § 831 BGB. This provision makes it possible for the employer to make a proof of exoneration, and also provides that his liability does not rest on whether his employee has committed a fault. This general principle of § 831 BGB is not dependent on the size of the enterprise. There were large enterprises in existence at the time the Civil Code was enacted, and it was impossible then, in these enterprises, for the selection and oversight of every single employee to be left to the owner or a legal representative (gesetzlicher Vertreter) chosen pursuant to § 831 BGB. If establishment of a particular rule governing such enterprises had been desired and, in particular, if the expansion of the legal concept contained in § 278 BGB to include delictual liability had been desired, it would have been expressed in the Code.

Accordingly, in the present case, the principal matter to be demonstrated was whether the defendant used the requisite care in the selection and supervision of his manager K. …