Why is a subjective term objectionable
Definition of "gross negligence"
BGH, judgment of July 11, 2007 - XII ZR 197/05
NJW 2007, 2988
Official Guiding principle:
A driver who dodges a fox crossing the lane with his vehicle does not act with gross negligence.
It's about the concept of gross negligence. The BGH repeats the customary definition that someone acts with gross negligence who violates the due diligence required in traffic to an unusually high degree under the overall circumstances and ignores this, which should be evident to everyone in the given case. In contrast to simple negligence, grossly negligent behavior must be inexcusable, also from a subjective point of view, that goes well beyond what is customary. He further emphasizes that in spite of this uniformly valid definition of the term, the respective filling out is a question of the individual case.
© sl 2007
1 The plaintiff, a car rental company, is asserting claims for damages against the defendant because he damaged the car rented from her through gross negligence.
2 On June 8, 2004, the defendant rented a BMW 318 from the plaintiff, whereby an exemption from liability with a deductible of € 550 for accidents caused by the customer was agreed. When the vehicle was handed over, the defendant received from the plaintiff a sheet of paper entitled "Rental Agreement", from which the name of the rented vehicle, the amount of the rent and the exemption from liability with deductible emerged.
3 It also says:
"For this and future rentals I accept the general S. -Letting conditions, the conditions of the S. -Expressmasteragreement as well as the terms and conditions of the credit card companies ....
The general S. -Letting conditions and the conditions of the S. -Expressmasteragreement are available in the rental office. "
4 In the terms and conditions of the [seller] it says under "J: Liability of the tenant no. 2.":
"The tenant is free to exclude liability from accidents for damage to the landlord by paying a special fee = contractual indemnification. In this case, apart from the agreed excess, he is only liable for damage if ... he or his vicarious agents Have caused damage through intent or gross negligence ... "
5 On June 13, 2004, at around 4 a.m. on the A8 motorway between Stuttgart and Pforzheim, the defendant caused an accident with the rented BMW. In this regard, the defendant's damage report of June 13, 2004 states:
"Easy evasive maneuver when driving on the A 8 from Stuttgart to Pforzheim. Dodging due to a deer crossing (presumably fox) to the right, whereby the guardrail built a little in the hard shoulder was touched."
6 At the scene of the accident, the guardrail is reinforced and therefore protrudes slightly into the hard shoulder. At the time of the accident, the defendant was driving at a speed of 120 km / h. The claimant suffered damage totaling € 8,892.69 as a result of the accident.
7 The regional court upheld the claim for compensation for this damage in full. The defendant caused the accident through gross negligence. In response to the defendant's appeal, the Higher Regional Court only sentenced him to pay the deductible of € 550. The applicant's terms and conditions have become part of the contract. However, the defendant did not act with gross negligence. With the revision approved by the appellate court, the plaintiff seeks to restore the regional court judgment.
Reasons for decision:
8 The revision is unsuccessful.
9 The Higher Regional Court stated that the plaintiff was only entitled to a deductible of € 550 against the defendant in accordance with Sections 535, 280 (1) BGB in conjunction with the rental agreement. The general terms and conditions of the plaintiff, according to which the defendant is fully liable even in the event of a contractual release from liability if he caused the damage intentionally or through gross negligence, have become part of the contract. When the vehicle was handed over, the defendant received the written rental agreement with reference to the plaintiff's terms and conditions. The reference was therefore made in accordance with Section 305 (2) BGB and not only after the conclusion of the contract. The reference was also expressly within the meaning of the aforementioned provision. This is because it was arranged in such a way that an average customer could not overlook it even with a cursory glance. Finally, the defendant - at least through coherent behavior - agreed to the validity of the terms and conditions, since after handing over the written contract text, which contained the reference to the terms and conditions, he received the vehicle and the contract was thus concluded. In terms of content, the clause is not objectionable. Thereafter, however, the defendant is not liable for the damage incurred beyond the deductible of € 550. Because the plaintiff had not succeeded in proving that the defendant was responsible for the accident through gross negligence. In fact, it can be assumed that when, at the time of the accident, a fox crossed the A8 motorway, which the defendant was driving on at around 4 a.m. at a speed of approx. 120 km / h, reflexively he dodged slightly to the right and was doing so had touched the guardrail with the vehicle of the plaintiff. On the basis of this fact, there was no misconduct that was inexcusable from a subjective point of view and that significantly exceeded the usual level. It is true that the Federal Court of Justice (judgment of December 18, 1996 - IV ZR 321/95 - NJW 1997, 1012) ruled in the context of a partially comprehensive insurance that a driver driving a medium-sized car at a speed of around 90 km / h would evade, act with gross negligence. In that case, however, the question was whether a policyholder, as part of a partially comprehensive insurance, should consider it necessary according to Sections 62, 63 VVG to avoid and reduce the (threatened) damage to a small animal. In the context of such a constellation, the Federal Court of Justice stated that the policyholder was grossly negligent in making a mistake about the necessity of the expenses to avoid the insured damage and therefore could not demand reimbursement of his expenses (rescue costs) according to Sections 62, 63 VVG. In the present case, however, it is not about the reimbursement of expenses for rescue measures, but about whether the insured event as such was caused by gross negligence. In the context of this examination, reflexive evasion should not already be classified as subjectively completely inexcusable and thus grossly negligent. Because it corresponds to the natural reaction of a person to avoid a suddenly appearing obstacle and to avoid a collision and not to drive towards the obstacle. Such a "natural", even if it may not be sensible or expedient, reaction to the sudden appearance of a fox on the road can be viewed as negligent, but not as subjectively completely inexcusable misconduct that exceeds a normal level by a considerable amount.
10 The results of these statements stand up to an audit-based review.
11 1. The appellate court rightly assumes that the general terms and conditions of the plaintiff have become part of the contract in accordance with Section 305 (2) BGB.
12 a) This is countered by the reply to the appeal that the defendant submitted in detail that the lease was concluded orally and therefore without reference to the general terms and conditions of the plaintiff. The plaintiff did not deny this either.
13 However, that cannot be accepted. The plaintiff has denied that an oral contract for the vehicle was first concluded between the parties and only then was the defendant made aware of their general terms and conditions. Furthermore, it is not objectionable in terms of revision law that the appellate court saw the oral agreements of the parties regarding the rental of the vehicle, the handover of the written rental contract and the handover of the vehicle as a single process, which as a whole formed the conclusion of the contract.
14 b) The appellate court could also - contrary to the opinion of the revision's response - assume, within the scope of its discretion, without errors of law, that the reference to the general terms and conditions should not be overlooked for a customer with average attention and thus within the meaning of § 305 para. 2 BGB is express. The appellate court based this assessment on the fact that the entire text of the contract only comprises one page and that the reference to the general terms and conditions at the beginning of a new paragraph and thus in terms of printing technology appears somewhat raised.
15 2. The appellate court correctly assumes that, according to the established case law of the civil senates of the Federal Court of Justice, those who violate the due diligence required in traffic to an unusually high degree and ignore the circumstances, which should be clear to everyone in the given case, are acting with gross negligence. In contrast to simple negligence, grossly negligent behavior must be inexcusable, also from a subjective point of view, that considerably exceeds the usual level (see BGH judgment of January 29, 2003 - IV ZR 173/01 - NJW 2003, 1118, 1119 with further references).
16 Whether the negligence is to be assessed as simple or gross in an individual case is a matter of judicial assessment. It requires a weighing of all objective and subjective circumstances and therefore largely eludes the application of fixed rules. This judicial assessment can only be challenged to a limited extent with the revision. It can only be checked whether the legal concept of gross negligence was misunderstood in the factual instance or whether essential circumstances were not taken into account when assessing the degree of negligence. If the factual courts have not violated this, any different assessments of similar facts must be accepted (see BGH judgment of June 25, 2003 - IV ZR 276/02 - NJW 2003, 2903, 2904).
17 In the present case, the judgment of the Oberlandesgericht that the defendant did not act with gross negligence does not reveal any legal error that led to the annulment of the appeal judgment.
18 However, the view of the appellate court that the concept of gross negligence should be defined differently depending on the specific insurance situation is incorrect. Rather, as the revision rightly points out, the legal concept of gross negligence is basically uniformly defined according to the established case law of the civil senates of the Federal Court of Justice (see BGH judgment of January 29, 2003 - IV ZR 173/01 - NJW 2003, 1118 with further references). This principle must be adhered to for reasons of legal certainty. The different definition of the term advocated by the appellate court led to a barely manageable fragmentation of the term of gross negligence in insurance law due to the numerous different types of insurance and thus to an unacceptable legal uncertainty. However, the opposing statements of the court of appeal do not affect its assessment that the defendant did not act with gross negligence in the specific case.
19 Even the statements of the Higher Regional Court that the defendant's knee-jerk evasive action in response to the sudden appearance of a fox does not constitute grossly negligent misconduct in principle - in contrast to the opinion of the appeal court - does not ultimately necessitate the annulment of the appeal judgment. It is true that the statement of the court of appeal that a reflex action does not represent grossly negligent misconduct may go too far and be too general. In the defendant's situation, for example, a reflexive, abrupt and uncontrolled evasive maneuver combined with sharp braking, as a result of which the driver loses control of his vehicle, would usually also be assessed subjectively as a grossly negligent driving error.
20 However, this does not change the fact that in the specific case the appellate court's assessment is valid, according to which the defendant is not to blame for subjectively gross negligence. According to the findings of the Higher Regional Court, it can be assumed that the defendant, when at the time of the accident, a fox crossed the autobahn he was driving on at night at a speed of around 120 km / h, reflexively dodged slightly to the right and with the plaintiff's vehicle the Has grazed the guardrail. The fact that the appellate court did not assess this as subjectively inexcusable misconduct is within the scope of its judicial discretion and is not legally objectionable.
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