vicarious liability
noun · Geschäftsherrenhaftung
Geschäftsherrenhaftung for vicarious liability, § 831 BGB, but the German version is not strict, § 831 Abs. 1 Satz 2 lets the principal escape by proving careful selection and supervision of the Verrichtungsgehilfe, the Exkulpationsbeweis English law does not allow. So a claim that would be watertight against an employer in England can fail in delict, and claimants often reach instead for § 278 BGB in contract, where no such escape exists.
Which translation, when
Why
Vicarious liability makes an employer answer for an employee’s tort without any fault of its own, and German delict refuses to go that far. § 831 BGB, die Geschäftsherrenhaftung, makes the principal liable for damage the Verrichtungsgehilfe inflicts on a third party, but § 831 Abs. 1 Satz 2 opens an escape the English tort has no counterpart for, the principal is not liable if it proves it chose and supervised the helper with due care, or that the damage would have happened even so, der Exkulpationsbeweis. So the German liability rests on the principal’s own presumed fault in selection and supervision, not on the strict attribution of the employee’s wrong, and a well-run business can defeat a § 831 claim outright. The contrast with contract is sharp, § 278 BGB attributes an Erfüllungsgehilfe’s fault to the debtor with no exculpation at all, so the same careless act by the same worker binds in contract but may not in delict, which is why claimants and courts lean on § 278, on organisational Verkehrssicherungspflichten, or on § 823 BGB directly to close the gap. So vicarious liability translated flatly as Geschäftsherrenhaftung imports a defence the English claimant never faced.
Typical mistakes
- German § 831 BGB is not strict, § 831 Abs. 1 Satz 2 lets the principal exculpate by proving careful selection and supervision, so a vicarious-liability claim treated as automatic can fail where the employer took due care.
- Contract is different, § 278 BGB attributes an Erfüllungsgehilfe’s fault with no exculpation, so the same act may bind the debtor in contract yet not the principal in delict.
- The Verrichtungsgehilfe must be weisungsgebunden, subject to the principal’s instructions, so an independent contractor is usually not caught by § 831 at all.
What matters
Employer-liability questions turn on a defence English law omits: under § 831 BGB the Geschäftsherr answers for a Verrichtungsgehilfe only subject to the Exkulpationsbeweis, careful selection and supervision, while § 278 BGB in contract allows no such escape. The claim assuming an employer is automatically liable for its worker’s tort has overlooked that a well-documented selection and supervision defeats the delictual route.
What the machine misses
Vicarious liability comes back as Geschäftsherrenhaftung or a literal stellvertretende Haftung in machine output, and neither carries the point that decides cases, § 831 BGB is defeasible, the principal escaping by the Exkulpationsbeweis of careful selection and supervision, § 831 Abs. 1 Satz 2. So a translated vicarious-liability claim reads as the strict employer liability of English law, when in German delict a careful employer can shed it entirely, and the strict attribution the claimant expected lives only in contract, § 278 BGB.
Examples
| to be vicariously liable | für den Verrichtungsgehilfen haften |
| in the course of employment | in Ausführung der Verrichtung |
| the employer’s exculpation | der Entlastungsbeweis des Geschäftsherrn |
| liability for auxiliaries | die Haftung für Hilfspersonen |