BGH NJW 1969, 789 I. Civil Senate
29 January 1969
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

[A collection of jewellery owned by the plaintiff was being carried in the trunk of a car by their traveller K, then a general agent and now a partner in the firm. In the middle of June 1965 K hired a room in the defendant's hotel, as he had often done before. On returning to the hotel one evening at about 10 pm, he gave the night porter the keys of the car (including the key of the trunk) and told him to have the car garaged. The garage in question was nearby but it was not part of the hotel: it belonged to B, a firm which serviced and rented cars. If a guest wished his car garaged, this was the garage which the defendant hotel used. The porter called B and had the car fetched by one of its employees. There were notices in the hotel rooms about this service in June 1965. They said "Contract Garaging. Day and Night. Cars Fetched and Returned".

One of B's employees collected the car and the porter handed him the keys of the car and its trunk. The car was returned next morning by a different employee at about 9 am and left in front of the hotel. In the middle of the afternoon K and his colleague T drove to H to see a customer, and when T went to the trunk to collect the jewellery he found it locked. K and T then looked through the collection and saw that a number of wristwatches had been stolen from it. The lock of the trunk was undamaged, and police enquiries proved fruitless].

The plaintiff claims compensation both in his own right and as assignee of the rights of K. The Landergericht dismissed the claim and the Oberlandesgericht dismissed the appeal. On the plaintiff's appeal, the judgment below is reversed and the case remanded.


I. ...

II. 1... 2...

3 (a) The Court of Appeal clearly assumed that if the defendant were liable in contract for the loss of the wrist watches the plaintiff could claim for its loss on the basis of an assignment to it by K. This is correct. The principle of Schadensliquidation des Drittinteresses is applicable. It is implicit in the agreement between the defendant and K, already a contractual guest in the defendant's hotel, for the deposit of the car for reward, that the defendant's contractual liability for the protection of the car applies even if the car belongs to a third party, it being irrelevant whether the defendant knew or should have known or had any ground of supposing that it did so belong (BGHZ 15, 224, 228).

(b) On the other hand, there are objections in law to the view of the Court of Appeal that the contract of deposit in this case did not cover the contents of the trunk. By its very nature the contract of deposit applies to the moveable which is handed over to the depositee for protection as an entirety, whether it consists of a single object, a collection of objects which are legally or physically discrete, or of one single thing which contains a number of objects which are legally or physically separate. So far as can be seen, this has never been doubted before (see BGH NJW 1968, 1718). Thus the defendant's contractual duty extended to safeguarding the contents of the trunk.

Given the findings made by the Court of Appeal, that the watches were stolen while the car was in B's garage, the defendant had the burden of proving that its inability to return the property was not due to matters for which it was responsible (para. 282 BGB). It is not enough for the defendant to prove that it took all necessary care, which in any case it has not yet done. The circumstances here (the trunk being opened without harming the lock, the removal of the more valuable objects from the collection, the employment in the garage of a person who, according to the district attorney was "well-known to be a burglar and confidence-trickster") strongly suggest that it was the fault of the defendant or one of its agents for performance (para. 278 BGB) that the goods have gone, so the defendant can exculpate himself only by proving what in fact caused their loss (RGZ 149, 284 ff.; BGH NJW 1952, 1170). This has not been done.

(c) The outcome of the case now depends on whether the defendant has a total or partial defence on the ground that the plaintiff or its partner K was at fault under para. 254 BGB. This defence was raised by the defendant, but the Court of Appeal naturally did not consider it.

As will be seen, this court cannot conclusively apportion responsibility for the harm under para. 254 BGB, since the requisite facts have not been found by the Court of Appeal. The judgment of that court must therefore be vacated and the matter remanded to it for further proceedings and decision on the merits and on costs, taking the following considerations into account.

4. The Court of Appeal will have to verify whether fault on the part of K or the plaintiff contributed to the loss in issue, so as to reduce, perhaps to nothing, the damages payable by the defendant (para. 254 BGB). Given such a fault, then the amount of responsibility to be attributed to K and therefore to the plaintiff depends in the first instance on how far the harm was preponderantly caused by one or other party; the critical factor here is whether the conduct of one party not only enabled the harm to occur but made its occurrence substantially more probable than did the behaviour of the other party. The temporal order of the events which caused the harm is not critical (BGH NJW 1952, 537, 539; NJW 1963, 1447, 1449). Only if one cannot conclude from the respective causal efficacy of the conduct of both parties that the harm was preponderantly caused by either of them should the degree of fault of the two parties be considered. Then the first thing to do, before proceeding to apportionment, is to determine the amount of the fault of each party.

The first factor to consider is that K left the jewellery in the trunk of the car without telling the porter or anyone else on the defendant's staff that it was valuable and that the risk of loss was consequently very high (para. 254 par. 2 sent. 1 BGB). If the trunk had a separate key - this is not clear - the fact that K gave it as well as the car key to the porter would increase the plaintiff's contribution.

K's behaviour seems intrinsically to be grossly negligent of his own interests, but various considerations, some undisputed, others inferable from the plaintiff's evidence, make it seem less grave. There is the standing of the hotel to be considered and the quality of service which the guests would expect. Guests want to be spared the bother of parking their car, but they also expect it to be safeguarded as they themselves would do. According to the defendant, the garage ticket states that no liability is accepted for the contents of the trunk, but since the plaintiff's evidence is that the ticket was not handed to K before, or even at the time when, the car was handed over, the defendant would not be showing the careful service to be expected of such a hotel unless he told K that the garage owner's exclusion of liability made it risky to leave things in the trunk. There is the further fact in this case, according to the plaintiff, that K had been a frequent guest in the defendant's hotel in recent years. It was known to the hotel staff who looked after him that he carried a valuable collection of jewellery with him in the car and they never sought to dissuade him from leaving it in the trunk, as he sometimes did. Furthermore, on the present occasion the staff knew that K had the jewellery with him. It is true that K did not always leave the jewellery in the car, but he may have been induced to believe that when the car was securely garaged the jewellery in its trunk would also be safe. It is not clear on the evidence whether K knew where the car was garaged or how it was secured, so he could perhaps infer from the information provided in the hotel that his car would be looked after in a manner appropriate to its standing. The Court of Appeal will have to investigate these circumstances, determine the causal potency of the conduct of both parties, and apportion the responsibility between them.

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