BGHZ 66, 51 VIII. Civil Senate (VIII ZR 246/74) Gemüseblatt -decision = NJW 1976, 712 = VersR 1976, 589 = JZ 1976, 776
28 January 1976
with an approving note by Krauzer
Translated by:
F.H. Lawson and B.S. Markesinis
Professor B.S. Markesinis

The plaintiff, who at the time of the accident was fourteen years of age, went with her mother to a branch of the defendant’s, a small self-service store. Whilst her mother, after selecting her goods, stood at the till, the plaintiff went round to the packing counter to help her mother pack the goods. In doing so she fell to the floor and suffered an injury which necessitated lengthy treatment. Alleging that she had slipped on a vegetable leaf, she sued the defendant for breach of his duty to provide safe access. The Court of Appeal, having dismissed as time-barred the claim for damages for pain and suffering, the parties are now in dispute only on the question whether the defendant is obliged to compensate the plaintiff for her economic loss as well as prospective damage.

The Landgericht rejected the claim as time-barred. The Court of Appeal granted it—after deducting one-fourth for contributory fault. The defendant’s further appeal was unsuccessful for these


I. The Court of Appeal found as proved that the plaintiff slipped on a vegetable leaf lying on the floor near the packing counter and suffered injuries which necessitated the expenditure in question and may possibly lead to future loss. These findings disclose no legal error; they are in fact undisputed on appeal.

II. According to the Court of Appeal’s opinion the defendant had not furnished the proof incumbent on him that he had taken all necessary care for the safety of movement in his store and that the accident could only be attributed to the fact that another customer had shortly before let a vegetable leaf fall to the floor. These findings also cannot be faulted legally. They conform to the settled case-law of the BGH (NJW 1962, 31; cf. also RGZ 78, 239) both on the duty of a shopkeeper to ensure safety of movement and on the reversal of the burden of proof required by § 282 BGB in cases of claims for damages based on culpa in contrahendo. This point also is not contested on appeal.

III. The defendant therefore is liable—so continued the Court of Appeal—after taking the contributory fault of the plaintiff into account, for three-quarters of the existing and prospective loss, and that not only in delict, but also for fault in concluding contract, since in opening the self-service store he infringed the contractual duty of protection and care which he had undertaken to the plaintiff. Moreover, the plaintiff also has a claim for damages under a contract with protective effects towards a third party because her mother was during the accident preparing to contract with the defendant and the plaintiff was being included as an assistant within the scope of that contract-like obligation. For claims, however, arising from fault in concluding a contract the limitation period is thirty years, so that the claim was brought in good time.

IV. These explanations stand up to examination—at least in result. Admittedly, the main line of the Court of Appeal’s reasoning, that the defendant is directly liable to the plaintiff for fault in concluding the contract, irrespective of whether a contract with protective effects towards a third party needs to be brought into the picture, gives rise to doubts. Liability for culpa in contrahendo, which in cases like the present one is more favourable to a plaintiff than the general liability in delict for breach of the duty to provide safe access—because of the increased liability for employees (§ 278 BGB in contrast to § 831 BGB), the longer limitation period (§ 195 BGB in contrast to § 852 BGB), and the reversal of the burden of proof (§ 282 BGB)—rests on a legal obligation created by way of supplement to the written law. It arises from the process of bargaining for a contract and is largely independent of the actual conclusion or efficacy of a contract (BGHZ 6, 330, 333). The liability for a breach of the duties of protection and care arising from this obligation finds, in cases of the present kind, its justification in the fact that the injured party entered the other party’s sphere of influence for the purpose of negotiating for a contract and can therefore rely on an enhanced carefulness in the other party to the negotiation (cf. also BGH NJW 1960, 720). This is borne out exactly by the present case in which the mother entered the sales department of the defendant for the purpose of making a purchase and in doing so had to subject herself to a risk involved in the increased congestion, especially near the till, in a self-service store. It is, however, always a presupposition of liability for culpa in contrahendo in this type of contract of sale that the injured party enters the sales department with the purpose of contracting or of entering into ‘business contacts’—and therefore at least as a possible customer, though perhaps without a fixed intention to purchase (cf. BGH NJW 1962, 31). It need not be decided whether it is enough, in view of the peculiarities of sale in a self-service store, for a customer (when entering the sales department) to have intended at first only to have a look at the objects offered and be possibly stimulated to buy or only to make a preliminary comparison of prices with those in competing enterprises. In any case there is insufficient justification for a contractual liability for culpa in contrahendo stretching beyond liability for delict when the person entering the store never intended to buy, perhaps because—leaving aside the shop-lifter mentioned by the Court of Appeal—he is sheltering from a shower or using the store as a way through to another street or even only to meet other persons. The line may be difficult to draw in particular cases, above all because it depends on the difficult proof of unexpressed intention. In the present case, however, it is beyond dispute that the plaintiff from the start did not intend to make a contract herself but only to accompany her mother and help her in buying. A direct application of liability for fault in concluding a contract with the defendant is therefore excluded.

V. Nevertheless, the appellate judgment is proved right in result, because it is supported by supplementary considerations.
1. If the plaintiff’s mother had been injured in the same way as her daughter, there would have been no objection to making the defendant liable for culpa in contrahendo—as is also clearly stated in the appeal. In that case nothing need be said about the question, disputed in academic circles, whether in a self-service store the display of the goods constitutes an offer and the contract of sale is concluded by the buyer’s accepting it in presenting the selected goods at the till—thus reserving a final decision until that moment—or whether the display of the goods constitutes only an invitation to make offers, which the customer for his part makes by showing them to the cashier and the latter accepts by registering it on behalf of the self-service store. In any case, the general run of the reasons for the judgment, even though it contained no express statement by the Court of Appeal, makes it obvious that at the moment of the accident the goods intended for the purchase had already been finally chosen and a legal obligation already existed between the defendant and the plaintiff’s mother justifying liability for culpa in contrahendo.

2. It is on the legal obligation that the plaintiff can rely to justify her contractual claim for damages. It accords with the long-standing case-law of this Senate in particular that in special circumstances even bystanders who do not themselves participate in a contract are included in the protection afforded by it, with the consequence that although they have no claim to have the primary contractual duty performed, they are entitled to the protection and care offered by the contract and can make good in their own name claims for damages arising from the breach of those subsidiary duties . . . It is not necessary to consider here the theoretical question whether such a contract with protective effects toward third parties, on which the courts have proceeded hitherto, is derived from the supplementary interpretation of a contract incomplete to that extent (§§ 133, 157 BGB), or whether, as is increasingly accepted in the literature, direct quasi-contractual claims arise on grounds independent of the hypothetical intention of the parties, perhaps from customary law, or on the basis of legal developments by the courts. In any case, according to both views it is essential that the contract, according to its sense of purpose and the requirements of good faith, demands an inclusion of third parties in its sphere of protection; and that one party to the contract can in honesty—and in a manner discernible by the other party—expect that the care and protection owed to it will be equally extended to a third person. There is no good reason to exclude sales in general from this legally possible configuration as this is shown in particular by sales in shops to which buyers, in certain circumstances, must enter the sphere of influence of the seller. And that is also the view of the Sixth Senate in BGHZ 51, 91, 96.

3. Admittedly the inclusion of third persons in the sphere of protection of a contract—if the contract between contractual and delictual liability established by the legislator is not to be destroyed or blurred—needs to be confined to narrowly defined cases. Whether the mere fact that the customer makes use of a third person in initiating and concluding a purchase in a self-service store is enough for the protected effect to be accepted as possible may be left undecided; for in the present case it must be added that the plaintiff’s mother was responsible for her daughter ‘for better or worse’ (BGHZ 51, 91, 96) and therefore—and this should be known to the defendant also—for that reason alone it could reasonably be inferred that the daughter accompanying her should enjoy the same protection as herself. In such a close family relationship the courts have always seen themselves justified in extending contractual protection.

4. That in the present case the sale was not concluded at the moment of the accident is, in the result, unimportant. If one looks upon the duty of protection and care as the determining element of the legal obligation based on negotiating for a contract, and if one considers that the other party owes this duty of care both before and after the conclusion of the contract, the inclusion of third persons (who are equally worthy of protection) in the obligation follows. Moreover, there would be no rational ground for making the contractual liability depend on the chance of whether the negotiations had already led to a contract when the damage occurred; that is impressively shown by the present case, where the ‘sale negotiations’ had, in essence, been completed and the conclusion of the contract—possibly subject to a delay on the mother’s part in completing it at the till, and for which the plaintiff’s mother was not responsible—was in any case imminent. The appellant’s contention that a cumulation of liability for culpa in contrahendo and inclusion of a third party in the protective effect of a contract would lead to an unforeseeable widening of the risk on a seller, is directed in principle against justification of both institutions in general. The danger of a flood of litigation, which cannot be dismissed out of hand, has, as has already been explained, long been taken into account by the courts, which have imposed strict requirements on the inclusion of third parties in the protective sphere of a contract. As regards to merely precontractual relations some reservation may be indicated. But in any case with so narrow a limitation there is no objection to an extension of protection if—as here—the person causing the damage could not reasonably have opposed any desire expressed by the mother, when negotiating for a contract, to have from the start the same protection expressly given to the child who was subsequently injured herself. Finally, in so far as the appellant contends that the long limitation period—combined with the reversal of the burden of proof—would intolerably worsen the evidentiary position of anyone sued for damages in such situations, the remedy must be found in laches (Verwirkung) of the existence of which there is no indication in this case.

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