RGZ 78, 239 VI. Civil Senate (VI 240/11) Linoleumrollen -decision = JW 1912, 191
07 December 1911
Professor B. S. Markesinis
F H Lawson and B S Markesinis


According to the findings of the Court of Appeal the plaintiff, after making several purchases in the defendant company’s department store, went to the linoleum department to buy linoleum floor-cover. She mentioned this to W, the sales assistant who served there, and looked through the patterns which he displayed for her to make a choice. W, in order to pull out the roll she pointed to, put two others aside. They fell, hit the plaintiff and her child, and struck both of them to the floor. The purchase of the linoleum was not completed because, in the plaintiff’s words, she became seriously disturbed by the fall.

The Court of Appeal rightly attributed the plaintiff’s accident to W’s fault, on the ground that he had put the rolls, which were not stable enough because of their relatively small bulk, insecurely on one side, instead of furnishing them with lateral protection on leaning them against the wall, and this even though he could have foreseen that the plaintiff, as usually happens with the buying public, would approach the place where the goods she had asked to be displayed were stored. The Court of Appeal’s view is comprised in the simple conclusion that the rolls would not have fallen if W had placed them carefully and regularly on one side.

The Court of Appeal’s opinion that the defendant company is liable for W’s fault under § 278 BGB cannot, in spite of the appellant’s contention, be rightly objected to; and it conforms to the case-law of this Senate. W was acting for the defendant company (§ 164 BGB, § 54 HGB) when he entered into negotiation with the plaintiff. The plaintiff had asked for a piece of linoleum to be laid out for inspection and purchase. W had acceded to her request in order to make a sale. The proposal and its acceptance had for their purpose the conclusion of a sale, and therefore the production of a legal transaction. That was no mere factual proceeding, a mere act of courtesy, but a legal relationship came into existence between the parties in preparation for a purchase; it bore a character similar to a contract and produced legal obligations in so far as both seller and prospective buyer came under a duty to observe the necessary care for the health and property of the other party in displaying and inspecting the goods.

The judgments of this Senate have already proceeded on similar grounds, and it has been recognized in several decisions of the Reichsgericht that duties of care for the life and property of the other party can arise from bilateral or unilateral obligations, which have nothing to do with the legal nature of the relation in a narrower sense, but nevertheless follow from its factual character.

The defendant company made use of W’s services for the fulfilment of the aforesaid obligation to the prospective purchaser, and is therefore answerable for his fault. This is in line with the thought expressed in § 278 BGB, that whoever himself owes a performance that he must carry out with the required amount of care must, when he makes use of an employee, answer for his careful performance, and that accordingly the other person to whom the performance is due must not be put in a worse position because he does not do it himself but commits it to an employee. It would be contrary to the general feeling of justice if in cases where the person in charge of the business of displaying or laying out goods for exhibition, sampling, trial, or the like carelessly injures a prospective purchaser, the proprietor of the business—with whom the prospector wished to make a purchase—should be answerable only under § 831 BGB and not unconditionally, so that the injured person should, if the proprietor succeeds in exonerating himself, be referred to the usually impecunious employee.

There is no need to go here into the legally questionable view of the Court of Appeal that the mere entry into a department store of a prospective purchaser or even a visitor without any intention of buying creates a contractual relation between him and the proprietor, including the widely discussed duties of care . . .

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