BGHZ 61, 227 VIII. Vivil Senate (VIII ZR 175/72)
19 September 1973
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

The plaintiff claims damages for the harm caused to the house of its insured, B (the landlord), to whose rights it is subrogated (para. 67 Insurance Contract Act - Versicherungsvertragsgesetz - VVG).

The first defendant had rented one floor of B's house since 1966, as well as a further room which he used as a storeroom. On the ground outside the house he kept a single-axle motor-trailer, equipped for the sale of food and drink and containing two cylinders of propane gas which fuelled some cooking apparatus and two lights. The second defendant was a salesman employed by the first defendant.

On the early morning of 21st December 1967 there was an explosion due to escaping propane gas. This explosion destroyed the vehicle and damaged doors and windows in the landlord's house as well as the paintwork outside and in. On 22 December 1967 the landlord gave immediate notice to quit, and the first defendant moved his vehicle to another plot of land which he rented.

The plaintiff indemnified the landlord and now claims payment of the sum of 3,718.98 DM, first demanded on 11 October 1969, on the basis that on the evening of 20 December 1967 the second defendant carelessly failed to turn off the taps of the propane gas cylinders.

The Landgericht gave judgment for the plaintiff, but the Oberlandesgericht reversed on the ground that the claim was time-barred, a point which the defendants had raised in their second ground of appeal. The plaintiff's appeal is dismissed.





Claims against the first defendant.

1. The Court of Appeal assumed, without detailed investigation, that the landlord (to whose rights the plaintiff is subrogated) had concurrent claims against the first defendant in tort and under the contract of lease. It found these claims time-barred under para. 558 BGB. The court held that no claim arose under para. 7 Road Traffic Act (Strassenverkehrsgesetz - StVH) because the trailer-shop was not a 'motor vehicle' in the sense of para. 7 of that enactment, nor was it 'in operation' at the time, as required by that provision.

2. In the circumstances of the case there is much to be said for this last point, but we need not determine it now for, as we shall explain, the applicability of para. 558 BGB means that if any claim did arise under the Road Traffic Act it would in any case have prescribed.

The Reichsgericht and the Bundesgerichtshof have always held, with virtually no dissent from commentators, that the short prescriptive period of para. 558 BGB applies to all damages claims, regardless of their basis, which the landlord can bring in respect of alteration to or deterioration of the leased property. This includes claims under the Road Traffic Act, at any rate when, as here, the garaging, keeping, or parking of the vehicle is envisaged by the lessee and the harm results from such a use of the leased property. To hold otherwise would frustrate the purpose behind para. 558 BGB, namely that the parties should be prompt in finalising the landlord's claims for damages, for para. 14 StVG has a two-year prescriptive period which the landlord could invoke in order to displace para. 558 BGB.

3. The main damage caused by the explosion, according to the Court of Appeal, was to parts of the property that were neither demised by the lease nor, like the front door, the entrance hall, and the staircase, provided for common use by people including the first defendant. The Court of Appeal, following the Reichsgericht in RGZ 75, 116, was right to hold that this is no obstacle to the application of Para. 558 BGB to all claims for damages arising out of harm caused by the explosion.

(a) It is true that the six-month prescriptive period of para. 558 par. 1 BGB applies by its terms only to claims in respect of alteration to and deterioration of the leased property, and of itself this applies only to the property which the lessee may use under the lease contract, exclusively or in common with others. To this extent, at any rate, the statutory rule is unequivocal: all claims in respect of such harm prescribe in six months. Desirable as it might be to have a single prescriptive period for claims for damage to leased and to unleased property, the binding nature of para. 558 as a special rule of the law of leases makes it impossible to say that where damage to unleased property occurs as well, claims for damage to the leased property prescribe in thirty years (para. 195 BGB).

(b) Quite the contrary. It frequently happens that a tenant causes simultaneous harm to leased and unleased parts of the property. If in such cases one part of the claim prescribed in six months and the other only in thirty years, the aim of para. 558 BGB, namely to procure that the landlord's claims be swiftly and finally dealt with, would only be partially achieved. We must therefore follow the Reichsgericht in holding that in such mixed cases the uniform short prescriptive period of six months applies. To construe para. 558 BGB in this manner causes no juridically unacceptable disadvantage to the landlord, at any rate where he is in immediate possession of the unleased parts which are damaged, for then he can forthwith ascertain the nature and extent of the damage just as he can when the tenant returns the leased property (see this Senate 2 October 1968, NJW 1968, 2241). We must take it that that is the situation here, for the plaintiff has not asserted that those parts of the dwelling which were not leased to the first defendant were leased to anyone else and thus inaccessible to him. We therefore need not investigate when the period of prescription begins to run in respect of harm to property leased not to the defendant but to other tenants, supposing that one could in law have different start-points for the six month period of prescription depending on when the damages parts of the property were returned to the landlord (compare para. 558 par. 2 BGB).

(c) We must also reject the idea of having different periods of prescription depending on whether the harm is caused predominantly to the leased property (as in RGZ 75, 116) or to parts of the property not included in the lease. To handle such mixed cases in that way would lead to legal uncertainty, as the Court of Appeal pointed out, and would leave open the question how to deal with a case where the harm caused to leased and unleased property was equal in extent.

(d) Nor can it matter how extensive the harm caused to the parts of the property not leased may have been; for the clear intention of the statute is that the landlord is bound by the short prescriptive period even when very considerable harm is caused to the leased part of the premises. All this flows from the legislator's concern that the landlord's claims for damages be dealt with quickly and definitively.

(e) Another factor which tells in favour of having a uniform short period of prescription is that the duty of care incumbent on the tenant of premises applies to the whole premises and not just to those parts which are leased to him, for, leaving aside other concurrent claims which the landlord might have, the tenant could hardly be liable for damaging the leased property unless he were in breach of this duty. The tenant has a contractual obligation to take care that his use of the leased property causes no harm to other parts of the property. There can hardly be any overwhelming reason for having separate periods of prescription when the tenant causes harm to leased and unleased parts of the property by a single act or omission in breach of his duty of care. It can be left open what the decision should be if the only harm caused by the tenant's breach of his duty of care is to objects not included in the lease, since the question does not arise here.

(f) The appellant does attempt to split the lease into two, one object being the land on which the sale-trailer was kept, and the other the storeroom. Had there been two contracts of lease between the first defendant and the landlord, such a division might arguably be acceptable, but even the plaintiff makes no such assertion. If there is but only contract of lease, para. 558 BGB applies to all parts of the property which are leased, and also those, such as the external stairway, the front door, and the foyer, which are in common use and provide a necessary link between the various parts which have been leased. It is thus impossible to say, as the appellant tries to do, that none of the damage due to the explosion in front of the house was to 'leased things' under para. 558 par. 1 BGB.

5. The appellant raises no objection to the manner in which in which the period of prescription was computed, and no error of law is to be found therein. The Court of Appeal was consequently right to dismiss the claim against the first defendant.


Claims against the second defendant.

1. Here, too, the Court of appeal allowed the defence of prescription, in reliance on the decision of this Senate in BGHZ 49, 278. As in that case, the person from whom damages were claimed here was an employee and agent for performance of the tenant who, being drawn into the protective ambit of the contract of lease, could invoke the short prescriptive period of para. 558 BGB just as the tenant himself could. There was the further ground, as in the decision cited, that the second defendant was engaged in a 'dangerous activity' on behalf of the first defendant, and was thus entitled, if sued, to be indemnified by him; but if the second defendant was liable and the first defendant was liable to indemnify him, the first defendant would then lose the protection of para. 558 BGB.

2. The appellant objects to this that the second defendant was not engaged in any dangerous activity: there are gas cookers in every house, but housemaids and cooks are not engaged in a dangerous activity. The concept of dangerous activity was developed in relation to truck drivers and agents of that kind whose employment was inherently dangerous. There is much to be said for this, but we need not decide whether in the end of the day we agree with it for, as can be inferred from the cited decision, the tenant's assistant is entitled to invoke the short period of prescription if he falls within the protective ambit of the contract of lease. The Court of Appeal was right to hold that this was true of the second defendant.

(a) This Senate has repeatedly explained that contracts of lease are a prime example of the application of the legal doctrine of contracts with protective effects for third parties (see BGHZ 49, 278, 279; 49, 350, 353). The courts include a third party in the protective ambit of a contract if the creditor owes him a duty of care and protection. In the case of leases this applies not only to the tenant's family but also to domestic servants and other assistants who, consistently with the lease, share in the use of the leased property or indeed, as here, use it on behalf of the tenant.

(b) It is therefore beyond doubt that the second defendant was included in the protective ambit of the contract of lease. The question then arises whether this entitles him t invoke the defence under para. 558 BGB in his own right. As was explained in BGHZ 49, 278, 279, the primary effect of the protection is that the third party, if injured by the landlord's breach of contractual duty, may sue him for damages. But if the third party has the right to sue the landlord for damages, it is difficult to see why, when he has damaged the landlord, he should not be able to invoke the short prescriptive period, just like the tenant himself. Ultimately, the third party is given a claim for damages because it would be unjust, when the tenant has a claim, to deny a like claim for contractual damages to the third party who uses the leased property as envisaged and comes to harm thereby or thereon. If this is so, it would be no less unjust to deny the protection of para. 558 BGB to a tenant's assistant when he has caused harm to the leased property while using it on behalf of the tenant or pursuant to a contract with him. If the contract of lease can extend its protective ambit to a third party in appropriate cases like the one before us, there can be no doctrinal reason why its protective effects should be limited to granting a claim for damages. On the contrary, it is entirely appropriate to extend it so as to curtail liability by means of the short prescriptive period (reference omitted).

(c) As this Senate said in the two decisions cited, it is extremely important not to overextend the circle of persons who fall within the protective ambit of the contract, but there can be no objection to including, along with the tenant's family, at least those employees who are, consistently with the lease, using the leased property with the tenant or on his behalf. Here, at any rate, the main idea is not so much that the tenant was under a duty of care and protection for the third party, and thus to a certain extent responsible for his well- or ill-being (see BGHZ 51, 91, 96) as that the third party was using the leased property consistently with the lease and that this involved the risk, equally evident to the third party and the tenant, of his damaging the leased property and being sued for it. This inclusion of the third party in the contract is the real justification for giving him the defence of prescription under para. 558 BGB, the same benefit that the tenant enjoys (Gernhuber reaches the same result for the more extreme case of contractual exemption clauses in JZ 1962, 553). (d) In NJW 1969, 1469, Boeck objects to the decision in BGHZ 49, 278 as being incompatible with the rules regarding common debtors. This is unjustified. It is true that under para. 425 BGB one common debtor cannot invoke the prescription which benefits another, but here, even assuming that the defendants are common debtors of the landlord, the second defendant has the defence under para. 558 BGB not in any accessory capacity deriving from its availability to the first defendant as tenant, but rather in his own right, this being precisely the protective effect of the contract of lease.

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