BGH NJW 2001, 1485 VI ZR 411/99 (Rostock)
12 December 2000
Translated German Cases and Materials under the direction of Professors P. Schlechtriem, B. Markesinis and S. Lorenz
Translated by:
Raymond Youngs
Professor B.S. Markesinis



II. The appeal judgment does not withstand the arguments in the appeal in law.

1. The appeal court is admittedly correct in assuming, along with the constant case law of this Senate, that a motor car passenger who does not fasten his seat belt can in principle be accused of contributory fault (§ 254 (1) of the BGB) in respect of the accidental injuries he suffers as a result of his failure to fasten his belt (references omitted). It also assumes, without legal error, that the wrongdoer cannot treat the failure of the accident victim to attach his seat belt as a contributory fault if, in the actual case, a duty to put on the belt under § 21 a (1) sentence 1 of the StVO (Road Traffic Order) did not exist, or an exception in the sense of § 21 a (1) sentence 2 of the StVO was present (reference omitted). The considerations which led the appeal court to deny a duty on the part of the claimant in the present case to put a belt on at the time of the accident do not however stand up to legal examination in the appeal in law.

2. The appeal court's assessment that the claimant was not obliged under § 21 a (1) sentence 1 of the StVO to put his seat belt on because the vehicle driven by him was stationary at the time of the accident cannot be followed on legal grounds. Admittedly the formula "during the journey" in this provision is understood in differing ways in the case law and the academic literature. The meaning favoured by the appeal court, referring to the presumed unambiguity of the word "journey", includes only the state of movement of the vehicle, which was absent when it stopped - even if only for a brief time (references omitted). According to the contrary view, the concept of the "journey" is to be understood more broadly and also includes short interruptions to the journey caused by traffic (references omitted).

The Senate follows the latter view. The concept of the "journey" is not unambiguous according to general use of language. It is to be understood as including not only the mere state of driving, which the Road Traffic Order as a rule describes with the corresponding verb "drive" or its variations (see §§ 2 ff.). This is shown by, amongst other things, the use of this concept in the provisions of § 31 a of the StVZO (Road Traffic Permission Order), which is decisive for the keeping of logbooks. It also includes the whole business of using the vehicle as a means of transport in road traffic, in order to get from one place to another (reference omitted). This unified event is not ended by the vehicle being temporarily halted at the red light of traffic lights, a stop sign or other circumstances in traffic.

Such an interpretation of the concept of a "journey" in the sense of § 21 a (1) sentence 1 of the StVO is to be preferred. It would simply not be reconcilable with the sense and purpose of the provision, which is to reduce the number of dead and (seriously) injured in road traffic accidents by the introduction of a duty to put on seat belts, to except dangerous situations of traffic related stops from this. It is not possible to derive any different conclusion from § 21 a (1) sentence 2 no. 3 of the StVO, according to which journeys at walking pace are excepted from the duty to wear a seatbelt (reference omitted). This exception likewise speaks of "journeys", and not of "driving", and of examples like driving backwards and driving on parking areas. This suggests that "journeys at walking speed" should only include such traffic movements as are intended from the outset to be driving at walking pace, and besides this are less dangerous because they take place away from moving traffic, or in the transitional area between moving and stationary traffic (reference omitted). Therefore in the end it is not a question of whether the claimant - as the appeal in law claims in the context of a procedural objection - had at the time of the accident already come completely to a standstill behind a vehicle stopping in front of him or whether he was still moving towards it at walking pace.

3. The denial by the appeal court of a duty by the driver of a vehicle transporting valuables to put a seat belt on "in analogous application of the legal concept" under § 21 a (1) sentence 2 no. 1 of the StVO likewise cannot be accepted on legal grounds. The fact that the cases regulated in §§ 21 a (1) sentence 2 and 46 (1) sentence 1 no. 5 of the StVO represent exceptions for which strict requirements are to be applied argues against any analogy (references omitted). It cannot be assumed that failure to consider other vocational groups like taxi or hire car drivers is a gap in the law which is contrary to plan, and which could be filled by case law.

Apart from this, the cases are not comparable. According to the official reasons (reference omitted), the legislator considered the release of taxi and hired car drivers from the duty to attach seat belts when they are transporting passengers to be required, because it was established that a member of this vocational group could frequently only escape an attack on his life by falling from the open door of his vehicle. The appeal in law is correct in claiming that the driver of a vehicle transporting valuables, in contrast to taxi or hired car drivers, is not exposed to any corresponding dangers from the interior of the vehicle. There is no need to decide whether the driver of a vehicle transporting valuables could likewise respond better without a seat belt to dangers to life and limb which threaten him from outside his protected vehicle on a traffic related stop. This is especially so, as corresponding dangers resulting from sums of money located in taxis or hired cars did not induce the legislator to release their drivers from the duty to attach their seat belts when travelling alone.


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