BGHZ 45, 311
VII. Civil Senate
(VII ZR 23/65)
= NJW 1966, 1807
= VersR 1966, 959
= JZ 1966, 645
30 June 1966
Translated by:
Von Mehren and Gordley
Professor B.S. Markesinis

Defendants G and T are partners in civil law (Gesellschafter einer Gesellschaft des bürgerlichen Rechts) in a motor vehicle garage. The plaintiff had an accident as a result of defects in repairs to his automobile that had been made at the garage. He brought a claim for damages against the defendants. The Oberlandesgericht adjudged G and T liable to pay for only half the damages in view of the contributory fault of the plaintiff. On the revision brought by the defendants, the liability of defendant G for damages was denied.

The court holds that defendant T, who actually repaired the vehicle, is liable under § 823 BGB for defects in the repairs which caused the brake fluid to leak out and the brakes to fail at the time of the accident. The court also holds that defendant G is not liable under § 823 BGB since he did not repair the vehicle, and that he cannot be held liable under § 31 BGB since that section does not apply to his partnership.

Accordingly, [with respect to G] only liability under § 831 BGB comes into consideration. The appellate court held that such liability existed. Nevertheless, the factual basis for imposing it is absent.

One assigned a task within the meaning of § 831 BGB is simply one who is dependent upon the instructions of the person assigning it. The right to give instructions need not extend to details. It is sufficient that the worker’s activity may be limited at any time or withdrawn or circumscribed as to time and circumstances. These requirements are not met with regard to the work which defendant T did on the plaintiff’s automobile. Dependence in the sense just described cannot be deduced from the fact that both defendants bound themselves to a partnership contract in which each had the obligation to conduct repairs pursuant to the purpose of the partnership. In such cases, as a rule, two prerequisites for imposing liability under § 831 BGB are absent, namely the possibilities of limiting the task by use of an authority to give instructions and of ordering that the task not be performed. [Citations omitted.]