BGHZ 2, 94 III. Civil Senate (III ZR 102/50) = NJW 1951, 596
10 May 1951
Translated by:
J.A. Weir
Professor B.S. Markesinis

The plaintiff was leaving the hospital where his wife was a private patient when he fell and suffered concussion, a fractured skull, and a cerebral haemorrhage. He alleged that the accident was due to the dangerous condition of the main entrance of the hospital, and claimed damages from the defendant. So far as his action was based on breach of contract it was dismissed at all levels of jurisdiction.


The Court of Appeal held that the defendant was not liable on its contract with the plaintiff for the hospitalization of the plaintiff’s wife. It accepted that under a contract of lease the tenant’s family have a contractual claim against the landlord if there is a defect in the leased dwelling or its approaches which is attributable to him and they suffer harm thereby; and it agreed that the hospitalization contract is like a lease in certain respects; it found, however, that the lease features of a hospital contract are really very subsidiary: the patient has no claim to any particular form, and the primacy of the medical treatment reduces the significance of the premises as compared with a contract of lease. Therefore no contractual liability of the defendant arose under § 278 BGB.

In contesting these views, the appellant emphasizes the fact that he himself made the contract whereby his wife was taken in by the defendant as a private patient. The contract bound him to pay the hospital bill and bound the defendant not only to care for his wife (§ 328 BGB), but also, as a subsidiary duty, to enable him to visit his wife in safety. Given that he was a principal contracting party, it is irrelevant, says the plaintiff, whether, had he not been, the defendant would be liable to him under § 328 BGB in the way the landlord is liable to the tenant’s family.

Contrary to the appellant’s view, the contractual liability of the defendant for the accident which the plaintiff suffered as he was leaving the hospital by the front steps cannot depend on whether it was the plaintiff himself or his wife who entered into the hospitalization contract. It is true that a contract is formed when a private patient is taken into a hospital, even a hospital run by a public body (RGZ 64, 231; 83, 72; 111, 263; see also RGZ 108, 87), and that the plaintiff as husband acquired contractual rights against the defendant (RGZ 64, 233); yet it is not from the formation of the contract but from its content that a duty to take care of the plaintiff’s safety must arise. If in addition to the primary obligation towards the patient to give him medical treatment, the terms of the contract include an obligation towards certain third parties, the hospital would be contractually liable to those third parties regardless of whether they had participated in the formation of the contract or not.

The hospitalization contract is doubtless a contract of services (Dienstvertrag) (RG JW 1938, 1246 [other references omitted]), whereby the patient is to be provided with bed and board as well as with medical treatment and care. The medical treatment is, however, the essential and critical element, the bed and board being by contrast rather subsidiary (see RGZ 112, 60 [other references omitted]). There is thus no occasion to infer any subsidiary contractual duty to ensure that the patient’s husband be safe in visiting the hospital. But the result would be just the same even if one held, in view of the purposes of the hospitalization contract, that there was an independent contract for lodging and meals collateral to the main contract for medical services; the result would be the same, too, if a separate contract with different terms were made with a doctor (RG JW 1936, 3182 no. 6), for example, if the patient were taken into the hospital on the referral of the doctor treating her so that the treatment could be continued there. For even if there were a separate contract with the hospital for lodging and meals, the plaintiff as husband would have no contractual claim to safe access to his sick wife, despite the lease features of the contract. It is true that under the law of lease the tenant’s family have the same rights against the landlord regarding the safety of the premises as the tenant himself (RGZ 91, 21, 24; 102, 232; 152, 177; 169, 87 [other reference omitted]). In accordance with the purpose of the contract, rights are granted under § 328 BGB to those who belong to the tenant’s household, members of the family and domestic help; but no such rights are granted to guests: the precondition is living together in the rented premises. The tenant intends (and his intention, though inexplicit, is perceptible by the landlord) to have the lease include the members of his family and respect their needs; to persons outside the home, who stand in no particular relationship to the leased premises, this does not apply. The recognition of the tenant’s implicit contractual purpose to put his family in the optimum legal position may have led to giving a child a direct claim for proper medical treatment when the treatment is arranged by its statutory representative (RGZ 152, 175), but even so it is only the child being treated who has a direct claim for the contractual performance arising out of the contract. When the husband takes his wife to hospital, he admittedly has a contractual claim that she be properly treated, but apart from that he is in no special relationship with the hospital and has no contractual claim for care towards his own person; and therefore cannot demand safe access to his wife in the hospital on the basis of the hospitalization contract. We need not decide whether it would make any difference if the husband, with the consent of the hospital management, had stayed in the hospital, even overnight, in order to be near his wife.

On the facts, the plaintiff had no claim against the defendant for breach of a contractual duty of care.

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