BGHZ 62, 119 V. Civil Senate (V ZR 21/72)
08 February 1974
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 defendant sold to the plaintiff part of a lot of land which he did not own but was to buy from Mr. and Mrs. E, who had offered to sell it to him. The Court of Appeal was quite right to find that this was part of his contractual duty. In the event the defendant was unable to acquire the land because Mr. and Mrs. E sold their entire holding, including the part sold by the defendant to the plaintiff, to the architect B, and B refused to release it, an entry having been made in his favour in the land register. The defendant being unable to convey the property to the plaintiffs as promised, the plaintiffs regard themselves as entitled to reclaim the DM 1,000 which they paid towards the purchase price, and also to claim damages; this latter liability the defendant contests.

According to decisions of the Bundesgerichtshof (see 10 March 1972, WM 1972, 656 with references) the mere fact that the defendant had sold a piece of property belonging to a third party and was unable to deliver it gives rise to a claim for damages, regardless of any question of fault, and this claim would include at least any sum of money which had been paid towards the purchase price (RGZ 134, 83, 90; other references omitted). The Court of Appeal, however, went into the question of fault, perhaps because it construed the contract as showing that the parties had agreed that the defendant should only be liable if he was responsible in the sense of para. 276 BGB. Such a construction is binding on this court in a case of review.

Even so, the judgment under appeal is unassailable. The architect B was able to acquire the property and so render it impossible for the defendant to perform his contract because Mr. and Mrs. E were not informed in time of the defendant's acceptance of their offer for sale, and because no steps were taken to make the agreed entry in the land register in the defendant's favour. These were steps which the defendant was bound to take, because under the circumstances it was quite on the cards that Mr. and Mrs. E would dispose of the property elsewhere once the time for acceptance of their offer had elapsed. It was the defendant's contractual duty to prevent any such occurrence, and he did not satisfy this duty by joining the plaintiffs in putting in the contract of sale between them that the authenticating notary was to execute it. The court of fact was right in law to hold that the contract did not relieve the defendant of responsibility for such acts of execution as he could himself personally have effected.

The defendant himself was not at fault, according to the judges below, but this is not conclusive, as he sought to perform his duty vis-à-vis the plaintiffs, namely to acquire the property from Mr. and Mrs. E, through the notary, Dr. B, whom he charged in the sale contract with Mr. and Mrs. E, which came about through the defendant's declaration of acceptance, with the 'execution' of this contract. The damage to the plaintiffs arose because Dr. B was at fault: he neither told Mr. and Mrs. E right away of the fact that the sale contract had come into existence, nor took any steps for the proper entry of this fact in the land register. The defendant is responsible for Dr. B's negligence under para. 278 BGB. The judgment under appeal was right so to hold, despite all the appellant's arguments to the contrary.

It is true that whether a notary acts as a certifying notary or in any other way, that is independently of any authenticating function, he invariably acts in an official capacity. This follows from para. 1 and paras 20-25 of the Federal Ordinance on Notaries (BNotO). No distinction can be drawn between official activities and any pure 'lawyerly' activities of the sort that might be undertaken by a private law contract; indeed, a notary cannot contract to act as such. So the defendant's mandate to Dr. B to execute the contract between him and Mr. and Mrs. E was simply a stimulus to the exercise of his official notarial activity (references omitted).

But this is irrelevant to the question in issue, namely whether a notary may be a contractual assistant (Erfüllungsgehilfe) in the sense of para. 278 BGB. Where the notary himself is being sued for possible shortcomings, the fact that all the duties he undertakes form part of his official functions is relevant: his liability then is not based on rules of private law, but exclusively on para. 19 BNotO. All the authorities, judicial and doctrinal, cited by the appellant in this connection deal with the question how far a person who is sued for damages in a public law situation may be responsible under para. 278 BGB for fault on the part of his contractual assistants. Here, on the other hand, the question is how that provision applies when a person whose obligations arise out of a private law relationship seeks to perform those obligations through the services of a third party who, on his part, acts in pursuance of official powers. The question whether in such cases fault on the part of the official renders the relevant contractor responsible under para. 278 BGB is one which has apparently but seldom troubled the courts.

In RGZ 104, 283, the Reichsgericht held that a bailiff who was executing a provisional decree was not the contractual assistant of the person who had obtained him so to act, because the bailiff was acting in his official capacity in execution proceedings and not pursuant to any relationship of private law: the person who suffered by breach of the bailiff's official duty must sue the bailiff himself (or the state, in an appropriate case) for damages under para. 839 BGB. This view has been widely endorsed by commentators (references omitted). In 1941 the Oberlandesgericht Dusseldorf held that since a notary who was authenticating a contract was acting in pursuance of powers granted to him by authority vis-à-vis all the parties involved, he could not be seen as a contractual assistant of either contractor in relation to a duty owed by him to a third party (references omitted). Finally, the Third Civil Senate of the Bundesgerichtshof has decided, in an unpublished opinion, that para. 278 does not apply to a

notary whether he is authenticating a document or is helping with the execution of a transaction which he has already certified, the reason being that in either case he is acting not as the assistant of the party but in his official capacity.

These cases have emphasised the public law nature of the third party's activities and have found it an obstacle to his being treated as a contractual assistant. But in BGHZ 24, 325 the Sixth Civil Senate of the Bundesgerichtshof had no objection to applying para. 278 BGB to a city welfare department that was exercising its public functions in connection with the holiday arrangements for endangered children. The observations of Staudinger/Werner BGB 10-11 ed. para. 278 n. 45 point in the same direction: despite its 'sovereign' character the Federal Postal Service is the contractual assistant of a debt or who uses it to transmit money by postal cheque or to deliver declarations which have to be in writing. It is this latter view which this court accepts. The fact that the notary Dr. B was acting in his official capacity when he negligently caused the harm to the plaintiffs is not critical. The reason why para. 278 BGB makes a debtor responsible for the fault of the third party whose services he uses in performing his obligations is that in using such an assistant he extends the ambit of his business and consequently his own area of risk; even if he himself has exercised all due care in selecting, training, instructing, and supervising the third party, he must bear the risk of his assistant's negligence simply because the assistant is performing a function which, in a question with the creditor, it is for the debtor himself to perform (references omitted). It does not matter to what extent the debtor remains able to affect his assistant's conduct (BGHZ 24, 325, 329), nor is the third party's status as contractual assistant effected by his legal relationship with the debtor (see BGHZ 13, 111, 113; 50, 32, 35; further references omitted). What is crucial is whether the third party has in fact, with the debtor's consent, acted as the debtor's assistant (hilfsperson) in performance of the debtor's obligations. But if the determining feature is the mere fact of the debtor's activating consent in bringing the third party in to perform his obligations, regardless of the legal nature of the relationship between them, be it contactual or non-contractual, then in the present case there can be no objection to treating the notary Dr. B as a contractual assistant. There is thus also no error in the Court of Appeal's view that the defendant must answer under para. 278 BGB for any fault on the part of Dr. B's assistants as well, subject to his adducing exculpatory proof.

It is not necessary to convoke the Grosser Senat für Zivilsachen under para. 136 par. 1 GVG.

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