German Delict Law (BGB §§ 823–853)
The Three Small Clauses
German delict law (Deliktsrecht) is codified in §§ 823–853 of the Bürgerliches Gesetzbuch (BGB) and is structured around three general clauses — sometimes called the “three small clauses” (drei kleine Generalklauseln) — each protecting different interests through a distinct mechanism. Section 823(1) BGB imposes liability for intentional or negligent injury to life, body, health, freedom, property, or an “other right” (sonstiges Recht). The provision protects a closed list of absolute rights and requires unlawfulness (Rechtswidrigkeit) — indicated by the very invasion of the protected right — and fault (Verschulden), meaning intent (Vorsatz) or negligence (Fahrlässigkeit). Section 823(2) BGB imposes liability for the intentional or negligent breach of a protective law (Schutzgesetz), requiring that the violated norm be intended to protect the class of persons to which the plaintiff belongs. Section 826 BGB is the catch-all provision: liability for intentionally causing damage in a manner contrary to good morals (gegen die guten Sitten). The BGB’s approach, unlike the open-ended general clause of French civil law (Art. 1382 Code Civil), provides three narrowly defined gateways that are individually interpreted and applied.
The Development of the Allgemeines Persönlichkeitsrecht
The general right of personality (Allgemeines Persönlichkeitsrecht) is the most significant judge-made addition to the catalogue of protected rights under § 823(1) BGB. The BGB as enacted in 1900 contained no general right of personality; the leserbrief (letter to the editor) decision of the Reichsgericht (RGZ 48, 114) had denied its existence. After 1945, the Bundesgerichtshof (BGH) recognised the general personality right as derived from Articles 1(1) and 2(1) of the Basic Law (human dignity and free development of personality). In the foundational Leserbrief case (BGHZ 13, 334, 1954), the BGH held that the publication of a distorted version of a letter infringed the author’s personality right and awarded damages. The Herrenreiter case (BGHZ 26, 349) extended the personality right to the unauthorised commercial use of a person’s image and awarded monetary compensation even in the absence of material loss. The Mephisto decision (BVerfGE 30, 173) established that the personality right survives death, though in a diminished form. The Caroline von Monaco decisions (BGHZ 128, 1; BVerfGE 101, 361; ECtHR, von Hannover v. Germany) addressed the tension between the personality right and press freedom, with the European Court of Human Rights holding that the German courts must provide effective protection against intrusive paparazzi photography. The personality right now protects the individual’s honour, image, spoken word, private sphere, and informational self-determination.
Schmerzensgeld (Pain and Suffering Damages)
The claim for pain and suffering damages (Schmerzensgeld) under § 253(2) BGB compensates the victim of personal injury for non-pecuniary losses, including physical pain, emotional distress, and loss of enjoyment of life. The BGB as originally enacted distinguished between pecuniary loss (Vermögensschaden) and non-pecuniary loss (Nichtvermögensschaden), with Schmerzensgeld available only in delict and only for intentional wrongs. The 2002 reform (Zweites Gesetz zur Änderung schadensersatzrechtlicher Vorschriften) fundamentally reformed the law of damages, extending Schmerzensgeld to contractual and strict liability claims and abolishing the requirement of intentional wrongdoing. Section 253(2) now provides: “If compensation is to be paid for damage resulting from injury to body, health, freedom, or sexual self-determination, fair compensation in money may also be claimed for damage that is not pecuniary loss.” The BGH has held that Schmerzensgeld serves both a compensatory function — to compensate for the immaterial harm — and a satisfaction function (Genugtuungsfunktion), which recognises the victim’s sense of having been wronged. The amount is assessed according to the severity and duration of the injury, the degree of fault, the age of the victim, and the financial circumstances of both parties to the extent relevant. The Schmerzensgeld tables (Schmerzensgeldtabellen) published by practitioners provide guidance on typical awards, which range from a few hundred euros for minor soft tissue injuries to several hundred thousand euros for severe catastrophic injuries.
Strict Liability (Gefährdungshaftung)
German law distinguishes between fault-based liability (Verschuldenshaftung) and strict liability (Gefährdungshaftung or risk-based liability). Strict liability is imposed by a series of specialised statutes reflecting the principle that a person who creates a special source of danger for the community must bear the consequences of that danger materialising, regardless of fault. The Straßenverkehrsgesetz (StVG, § 7) imposes strict liability on the keeper (Halter) of a motor vehicle for personal injury and property damage caused in the operation of the vehicle, with liability limits of €5 million for personal injury and €1 million for property damage per accident. The Produkthaftungsgesetz (ProdHaftG, implementing EU Directive 85/374/EEC) imposes strict liability on producers for defective products: the claimant need only prove the defect, the damage, and the causal link; the producer may raise the development risks defence (Entwicklungsrisiko) — that the defect could not have been discovered given the state of scientific knowledge at the time of circulation. The Haftpflichtgesetz (HPflG) imposes strict liability for energy installations (§ 2) and railways (§ 1). The Umwelthaftungsgesetz (UmweltHG) imposes strict liability for environmental damage caused by listed installations. The Luftverkehrsgesetz (LuftVG) provides for strict liability of the aircraft operator. The Wasserhaushaltsgesetz (WHG) imposes strict liability for water pollution caused by the storage, handling, or discharge of substances harmful to water. The Atomgesetz (AtG) imposes virtually absolute liability on nuclear installation operators. The BGB itself does not contain a general clause of strict liability; the field remains fragmented, though the Bundesministerium der Justiz has periodically proposed a codification of general strict liability principles.
StVG, ProdHaftG, and Contributory Negligence
The StVG as the leading strict liability statute has been shaped by extensive BGH case law. The keeper is strictly liable for accidents “in the operation of the motor vehicle” (bei dem Betrieb des Kraftfahrzeugs), a concept interpreted broadly to include parking, refuelling, and the conduct of the driver. Liability is limited to €5 million for personal injury and €1 million for property damage. Compulsory liability insurance is mandatory under the Pflichtversicherungsgesetz (PflVG). Contributory negligence (Mitverschulden) under § 254 BGB reduces damages proportionally; in road traffic cases, a failure to wear a seatbelt typically attracts a 25 percent reduction. The strict liability of the vehicle keeper under the StVG does not preclude an additional claim for fault-based liability of the driver under § 823(1) BGB, which is not subject to the StVG’s liability caps. The ProdHaftG provides for strict liability of the producer, defined as the manufacturer of the finished product, the producer of a component, and (by extension) the importer into the EU and the own-brand seller. The claimant must prove the defect, the damage, and the causal link. Personal injury damages are subject to a €500 deductible; property damage is compensable only if the property was intended for private use and the damage exceeds €500. Liability is capped at €85 million for personal injury caused by identical products with the same defect. The development risks defence, while available, is narrowly construed by German courts, which have held that only scientifically unforeseeable risks are excluded.