- BGH NJW-RR 1991, 1241 II. Civil Senate (II ZR 171/90)
- 17 June 1991
- Professor Basil Markesinis
- Raymond Youngs
The claimant was the owner of the motor yacht "G VI" which had been bought at a price of 40,000 DM. In September 1985, he placed an "application for total watersports insurance" with the defendant insurance company with which he maintained a number of other insurances. A comprehensive insurance policy for an insured sum of 400,000 DM made out "by authority of the companies involved" by P, a specialist broker for yacht insurance, was forwarded to him. The claimant paid the premiums due to the firm P. After carrying out comprehensive alteration works, the claimant asked the defendant in July 1987 for an employee to visit him. He told this employee that he wanted to change the fully comprehensive insurance to partially comprehensive, and to increase the insured sum to 1 million DM. The defendant's employee S then inserted "HP" at the start of a form provided by the defendant headed "Notice of Amendment", noted the claimant's wishes for amendment, inserted "immediately" for the date of commencement of the insurance, and had this form signed by the claimant. In August 1987, S telephoned the claimant twice to tell him that the firm P needed a valuation or shipyard opinion about the value-enhancing works. The claimant applied for this, but before it was obtained, the yacht was burnt out. The claimant received 400,000 DM for the fire damage from the firm P which, in the name of the insurer which it represented, refused further payments. In the current action, the claimant has demanded payment of 600,000 DM from the defendant on the ground that, even it if was not under a duty to him as contracting partner to enter into a contract, it should be responsible as negotiator for the fact that he had no temporary cover, as no proper explanation had been given.
The Landgericht rejected the claim but the Oberlandesgericht allowed it. The defendant's appeal in law led to restoration of the judgment of the Landgericht.
1. The Landgericht and the Oberlandesgericht have denied the existence of a comprehensive insurance contract between the parties. (...)
2. The appeal court was wrong to find that the defendant had a liability of its own as negotiator of the comprehensive insurance, which is the only kind of liability that accordingly falls to be considered.
a) According to the consistent case law of the Bundesgerichtshof, the duties arising from the statutory obligation relationship based on initiation of contractual negotiations by an agent apply in principle to the person the agent represents, and only exceptionally and in special circumstances to the agent as well (references omitted). Even if a contract for a comprehensive ship insurance already existed in the present case, and it was therefore not a question of initiating a contract for the first time, these principles must nevertheless be applied. This was because the actions of the defendant, instigated by the claimant, had the objective of concluding another insurance contract - which amongst other things would be a partial instead of a fully comprehensive insurance, and for which the insured sum would be raised from 400,000 DM to 1 million DM.
The exceptional cases in which the agent's own liability can arise are usually so described as to require that the agent has a special economic interest in the conclusion of the contract, or that he has laid claim to personal trust to a special extent (references omitted). Such exceptional cases have been found to be present on many occasions in the case law in respect of prospectus liability (references omitted) and used car dealers (references omitted). Otherwise the case law of the highest courts is in general restrained, which takes account of the exceptional character of the liability (references omitted).
b) The defendant had no special economic interest in the conclusion of the contract between the claimant and the insurance pool represented by the firm P.
The appeal court's starting point, that not every economic interest - and in particular not one which is merely indirect - suffices for personal liability, is admittedly correct. Therefore it has repeatedly been stated that, for example, the interest which the person acting has in obtaining a commission cannot fulfil these prerequisites (references omitted). What is necessary is a relationship to the subject-matter of the contract which is so close that the person negotiating is, so to speak, acting in his own affair: that he is to be regarded as the economic master in the transaction (references omitted).
That cannot be assumed from the findings of the appeal court in the present case. A possible interest by the defendant in obtaining a commission - on which the claimant has partly relied at second instance - is not sufficient for this. In this connection, it has not even been established whether the defendant has received a commission from the comprehensive insurance pool at all. (...)
c) The appeal court's view that the defendant laid claim to special personal trust should also not be followed. In this respect the appeal court's requirements are insufficient. It does not suffice for the personal liability arising on this basis that the contracting partner places special trust in the person negotiating. The case law of the highest courts requires that trust be claimed by the person negotiating (references omitted). The agent must therefore by his conduct influence the other person’s decision. A general allusion to the specialist knowledge which he had does not suffice here (references omitted). The agent must provide, over and above the general trust which arises in negotiations, an additional guarantee coming from him personally for the seriousness of the transaction and its fulfilment (references omitted). These special prerequisites are not present as a rule in respect of employees (references omitted) and insurance agents (references omitted).
In the present case, the defendant did no more than respond to the claimant’s intimation that he wanted to change an insurance, which he did not describe in any more detail, by sending an employee to his office to obtain his wishes about amendment and to forward the "Notice of Amendment" to the broker acting for the insurance pool.
Even if the claimant had turned to the defendant in relation to all his insurance affairs, this would not give rise to a claim to special trust in the sense of the case law mentioned above. (...)
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