BGHZ 70, 327 VIII. Civil Senate (VIII ZR 47/77)
15 February 1978
Translated German Cases and Materials Under the direction of Professors P. Schlechtriem, B. Markesinis and S. Lorenz
Translated by:
Tony Weir
Professor B.S. Markesinis

Two storage sheds on the defendant's property were joined along their length by a common wall. The defendant used one of these sheds for his own business; the other he had let on 6 September 1972 to the firm K to equip and use as a depot. As from 1 February 1974 the defendant had sublet this shed to the plaintiff by an oral agreement.

On 16 July 1974 it rained very heavily; rainwater came through the wall between the two sheds, flooded parts of the plaintiff's business premises and damaged the furniture he displayed there. The plaintiff alleged that the flooding had made it impossible to continue using the shed, and quit as from the end of September 1974. K refused to accept this, and sued the plaintiff for the rent until the end of 1974, when the sublease could be terminated. K obtained judgment.

The plaintiff now seeks damages for the harm due to the flooding, on the ground that, as the defendant knew when he entered into the headlease, the downpipes and the valley between the two sheds were inadequate to contain and carry off the rainwater from the two roofs. Not only was the defendant liable in tort (para. 823 BGB); he was liable to the plaintiff for breach of the lease contact also, for although the plaintiff was not a party to the lease, he fell within its protective ambit.

The plaintiff's claim was dismissed in both lower courts, and his appeal was a also dismissed.



The Court of Appeal rejected the plaintiff's claim in tort ( 823 BGB) on the ground that the defendant had not been at fault. This cannot be impugned, since there is no error of law in the Court of Appeal's evaluation of the evidence and findings of fact.


The plaintiff only has a contractual claim for damages on the lessor's 'guarantee' (for which fault is not a prerequisite -538 BGB), if he comes within the protective ambit of the head lease between the defendant and the firm K. The Court of Appeal held that he does not; in reliance on the judgment of the Oberlandesgericht Celle of 4 October 1974 (VersR 1975, 838) it said that the plaintiff did not need such protection because it had a claim on the sublease against its own contractor, k, and 'therefore does not need any additional "contractual" debtor'. We agree with this.

1. We have regularly held that in certain circumstances it is possible for a third party to acquire rights under a contract between two other persons, rights which give rise to contractual claims and whose content depends on what the principal parties have agreed (BGHZ 49, 278; 61, 227; NJW 1976, 1843). The third party can only be properly included in the protective effect of ambit of the contract if he can be expected to come into contact with the performance or the object of performance (here the property leased: see BGHZ 49, 350, 354; 61, 227, 234). This requirement is satisfied in the present case, because although the defendant's written agreement to the sublease was not obtained as required by 4 par. 2 of the lease between the defendant and K, there is no doubt that the defendant knew of the sublease to the plaintiff and acquiesced in it. There can thus be no suggestion that the plaintiff's use of the leased property was unauthorised (see BGHZ 49, 350, 355 f.).

2. That does not mean that the plaintiff sublessee was drawn within the protective ambit of the contract between the defendant and the firm K. It is perhaps doubtful whether the sublessee was using the rented property in the way that the tenant's family or employees do, that is, regularly (bestimmungsgemäss). This was regarded as critical for the decision in BGHZ 61, 227, and NJW 1976, 1843, but it need not be discussed further here. The critical factor, as the Court of Appeal saw, is that the plaintiff had no such need of protection as would justify giving it a direct contractual claim against the defendant: the plaintiff already had a contractual claim against its own landlord, K, a claim with the same content as the claim it urges against the defendant. In particular, it can claim damages from K, its contractor, under 538 BGB, given appropriate facts. Now the reason why a third party is granted a claim for damages is that it would be unjust if, when the tenant automatically has a claim, he, the third party, were denied one when he regularly and without any contract comes into contact with the leased property and comes to harm through it or on it. Ultimately it is based on the principle of good faith (see BGHZ 49, 350, 351; 51, 91, 96; 61, 227, 233). But if the victim has his own contractual claim with identical content, albeit against another debtor, he has no need to invoke the protection of a contract concluded between others. To allow a claim in a case like this on the basis of a contract with protective effect for third parties would conflict with the frequently expressed concern of the courts to avoid an endless extension of the protected class (BGHZ 49, 354; 61, 234). This reinforces our view that it would be wrong to include the subtenant in the protective effect of the main lease.

This is not in conflict with the decision in BGHZ 49, 350, where the question whether the subtenant was a so-called 'creditor for purposes of protection' was expressly left open (at p. 355).

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