BGH JZ 1962, 570 VII. Civil Senate (VII ZR 134/60)
07 December 1961
Translated German Cases and Materials under the direction of Professors P. Schlechtriem, B. Markesinis and S. Lorenz
Translated by:
Mr Raymond Youngs, Southampton Institute
Professor B. S. Markesinis

Official summary:

On the question of whether the protective area of an exemption from liability clause contained in general conditions of contract also covers the employees ofthe benefited party.


The claimant, as insurer, is pursuing an alleged claim of its policy holder ("the Company") which the claimant considers has passed to it in accordance with § 67 (1) sentence 1 of the VVG (Insurance Contracts Act). In 1957 the Company carried out installation work on the territory of the W excavation plant on their behalf and stationed there two vehicles used for carrying personnel and equipment. It transferred the surveillance of these by a contract of the 1st August 1957 to W ("the Surveillance Service"), the employer of the defendant. Its conditions of business, which were quoted on the contract document, stated, amongst other things: "The Surveillance Service is liable for harm which arises through the intentional conduct or gross negligenceof its employees in the exercise of their duties...

Harm which arises in the operation and guarding of machines, heaters, boilers and heating excluded fromthe liability..."

The Surveillance Service employed the 71 year old defendant to guard the vehicles. During his duties he generally stayed in one of the vehicles. A stove was burning in it at night, in order to keep the space warm for the defendant.

In the evening of the 7th January 1957, the foreman of the Company informed the defendant that the Company's workers had hung out their wet clothes to dry near the stove; he should take care that nothing caught light. At about 21 hours the defendant put some coals in the stove and went out. When he came back again at about 22 hours, the vehicle was on fire; it was destroyed with all its contents.

The claimant paid for the Company's damage. The Landgericht allowed the claimant's applications and the Oberlandesgericht those of the defendant. The claimant's appeal in law was unsuccessful.


The Oberlandesgericht rejected the claim because it assumed that the exemption from liability agreed between the Company and the Surveillance Service also extended to the defendant. This clause is contained in the "Special Terms" of the Surveillance Service. The Senate, contrary to the view held by the parties, has to interpret them freely (details are given). The appeal court's finding that the Surveillance Service has exempted itself from liability for cases of the present kind shouldbe agreed (details are given).

The decision thus depends on whether the defendant has been included within the protected area of the exemption from liability agreed between the Surveillance Service and the Company. The Senate has, in agreement with the Oberlandesgericht, confirmed this.

Admittedly the "Special Terms" contain no express provisions about this. Further, it is correct that such clauses contained in general conditions of business are to be construed narrowly and, in case of doubt, against the person who has drawn them up and whom they benefit. But that alone is not decisive. It is not the wording of the exemption from liability but its sense and purpose, as recognisable to the other party to the contract, which are decisive. If there are no doubts in this respect, an appropriate amplification in accordance with § 157 of the BGB is notonly permissible but required (reference omitted).

1. The assumption that the Surveillance Service wanted to extend the protection of the clause to its employees seems appropriate for the simple reason that the Surveillance Service could be held to this on the basis of the duty of care which it owed. It undertook the task of protecting from harm the objects which it guarded. It regarded the risk here as so significant that it thought it ought to limit its liability in relation to the guarding and operation of heaters, so that it did not have to take responsibility for gross negligence by its employees. To have shifted this risk which it recognised from its own shoulders and yet to have wished to burden its employees with it would be incomprehensible. They were weaker economically and still less in a state than their employers to bear the consequences of their failings resulting from general human weakness. In these circumstances, simply the duty of care which the Surveillance Service owed required it to include its employees in the protection which it considered necessary. It is to be assumed, in the absence of grounds indicating the contrary, that it wanted to fulfill this duty by the exemption from liability clause.

2. The same consequence follows from another consideration.


a) It is recognised in the case law that, in the case of so-called danger-prone activity, the employee can in certain circumstances ask his employer to release him from his duty to compensate third parties who have been harmed. That can even fall to be considered if the employee has acted with gross negligence; admittedly in that case a complete release of the employee is generally ruled out (reference omitted).

These principles are applicable here. It is true that the guarding of a burning stove is in general not exactly difficult. Experience has however taught that damage here is no rarity and that it can be very extensive. Therefore the activity assigned to the defendant is to be regarded as "danger-prone" in the normal sense.

b) In this legal situation the Surveillance Service would not or would only imperfectly have attained the goal pursued by it if it had not extended the protection of the release to its employees as well. The reasons for this is that if claims could be made against them, they would in certain circumstances have had a claim to release against their employer. That would have contradicted the sense and purpose of the exemption from liability. Even on this ground it must be assumed that the Surveillance Service, in order to attain its goal, wanted at the same time to exempt its employees by the clause in question.

c) The appeal in law takes the view that no release from the employee's liability for gross negligence can be derived from the principles repeated above, because in such a case the employer does not need to release him. Here, in its view, the defendant has acted with gross negligence.


The objection is unsuccessful. Even its starting point is not correct. This is because even gross negligence on the part of the employee does not, as already explained, exclude the possibility that the employer has to release him from liability at least in part.

Apart from this, it must be assumed to be the self-evident will of the employer that a release agreed by it for its employees should have no smaller extent than its own. Merely the idea of the duty of care, as indicated above, leads to this conclusion.

3. The desire of the Surveillance Service to include its employees within the protection of the release is admittedly only of significance if it was sufficiently recognisable to the other party to the contract. But the Senate has no doubts in confirming recognisability. The Company is an employer itself. For it, therefore, those considerations were obvious, just as for all other clients of the Surveillance Service finding themselves in a similar position. It must also not be assumed that a contacting party which agrees to such comprehensive limitations of liability as have been agreed here, has the intention of releasing the wealthy partner to the contract and yet of holding its economically weaker employees to the stricter liability.

4. By this judgment, which leads to exclusion of liability on the part of the defendant, the Senate finds itself in agreement with the decisions of the second civil Senate of the Bundesgerichtshof [references omitted]. Admittedly it reached another result in the judgment of the [reference omitted]. But that was based on a divergent factual assessment by the relevant appeal court, by which the Senate was bound in that case.

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