Aplicación del análisis Scan a nivel maceral y comparación con los

A requirement for the application of § 1313a is that the person being used to fulfil an obligation can be classified as a helper in the sense of § 1313a. A helper is to be understood in a very broad manner, not limited to employees and also including occasional helpers.33 There has been case law insisting on authority over the conduct of the contractor or any form of a superiority relationship.34 However, recent case law35 and the academics include independent contractors in the definition of helper, irrespective of any authority over conduct held by the principal.36

For the application of § 1315 the person who caused the harm also has to be a helper in the sense of the provision § 1315. Unfortunately, the definition of helper according to academics differs from the definition of helper in the sense of § 1313a, despite both provisions using the same wording. Academics see some control and authority, at least theoretical, of the principal over the conduct of the person he employs as a condition of § 1315.37

Independent contractors fulfil this condition only if the principal has authority over at least parts of the subcontractor’s conduct and is therefore included in the principal’s sphere of influence or organisation.38

Scholars argue that it would be unjust to impose liability on the principal where he has not even theoretical control over the conduct and can therefore not influence the situation.39 The case law has in the past taken a different view and applied § 1315 to independent contractors even where there was no authority.40

It is widely accept in Austria that the differentiation between non-contractual and contractual liability leads to problems, in particular because a clear line between contractual and non- contractual duties cannot be drawn, and these problems are most intensely felt in regards to the liability for helpers. One only need to look at culpa in contrahendo and duties of care in situations of hazardous activities or other risks established by one’s activity or property which could be summed up as duties to maintain safety (‘Verkehrssicherungspflichten’) to realize that a grey area exists, which needs to be carefully examined.41 Additionally, the responsibility of a contracting party for the performance of the contract only exists regarding the main contractual duties; duties of care included in the contractual package do not fall under this ratio.42 This makes it in part difficult to explain differences in the liability for duties of care of contractual and non-contractual nature. In particular the liability for independent contractors when it comes to dangerous activities or activities creating risks for others should be considered in the non-contractual sphere, but the existing intense duties should lead to a liability of the principal even if he uses independent contractors. It should not be possible for a principal who enjoys the benefits of these dangerous activities to delegate the responsibility for harm caused by the danger created by using independent contractors outside of his scope of power. In these cases the principal should be obliged to retain some power over the conduct of the independent contractor in order to be liable for his behaviour even in a non- contractual sphere.43 Therefore, as far as the definition of ‘helper’ is concerned, a broader approach should be applied, which would include independent contractors in specific instances of duties of care (for example the mentioned ‘Verkehrssicherungspflichten‘). Some of these duties bind the

33 _{This is the case for § 1313a and § 1315, cf Schacherreiter in Kletečka/Schauer, ABGB-ON}1.00 § 1313a note 36; § 1315 note 7; Karner in KBB3 _{§ 1315 note 2; Koziol, Haftpflichtrecht II}2

, 340, 353. 34

Cf OGH 1 Ob 711/89 SZ 63/201; 4 Ob 2112/96 SZ 69/115. 35

OGH 1 Ob 269/99m JBl 2001, 58; 4 Ob 251/06z SZ 2007/1; Reischauer in Rummel3 § 1313a note 9 with further references; Schacherreiter in Kletečka/Schauer, ABGB-ON1.00 _{§ 1313a note 37.} 36

OGH 1 Ob 269/99m RdM 2000, 90 (Kopetzki); 4 Ob 251/06z SZ 2007/1; Harrer in Schwimann3 § 1313a note 6; Reischauer in Rummel3 _{§ 1313a note 9; Griss, JBl 2005, 69, 71.}

37

Schacherreiter in Kletečka/Schauer, ABGB-ON1.00 § 1315 note 8; Reischauer in Rummel3 § 1315 note 1; Koziol, Haftpflichtrecht II2, 353 f; Karner in KBB3 § 1315 note 2. Some of the case law agrees, see OGH 2 Ob 164, 165/67 JBl 1968, 473; 4 Ob 522/95 JBl 1995, 717.

38

Reischauer in Rummel3 § 1315 note 1; Harrer in Schwimann3 _{§ 1315 note 5 f; Koziol/Vogel,} Austrian Law, in: Spier, Unification note 31.

39

Reischauer in Rummel3 § 1315 note 1; Koziol, Haftpflichtrecht II2, 353 f; idem, JBl 1978, 93 ff. 40

OGH 3 Ob 217/75 SZ 48/110 = JBl 1978, 91 (Koziol), cf also 3 Ob 167/73 EvBl 1974/109. 2 Ob 164, 165/67 JBl 1968, 473, however, sees a relationship of dependence as a condition for the application of § 1315; same 4 Ob 522/95 JBl 1995, 717. 41 Cf FN 14. 42 Ondreasova, Gehilfenhaftung 42 ff. 43

principal in a more pronounced way, as they require a further care apropos a select group of individuals. These duties exist in the sphere between contract or special legal relationship and delict closer to the category of special legal relationship. If these duties to maintain safety are caused by dangerous activities or objects and accompanied by a high risk of damage to others, then an intense duty to oversee the work of the independent contractor, a need for coordination and a foreseeable damage to third parties should be amongst other criteria which could cause the independent contractor to be regarded as a helper. These criteria, which should influence the definition of ‘helper‘, need to be examined in more detail than is possible in this manuscript.44

A combined rule for non-contractual and contractual liability for helpers – as is in force in Slovakia at the moment – would help deal with the issues of this mentioned grey area more easily and fluidly than two separate rules.

2.4.2 Intentional harm by the employee

For contractual liability it is also necessary that the helper injured or damaged the tort victim or his estate during the performance of the special duty or relationship. A tort which is merely incidental to the performance will not trigger the liability of the principal.45 One has to examine the owed duty in particular. If there is a close enough connection to the duty, even intent on the side of the helper to commit the tort will not severe the connection and the principal will be liable.46 In a case where a plumber’s helper uses the opportunity of being in the victim’s home to steal some of the householder’s belongings the principal is not liable under § 1313a according to case law and Austrian scholars.47 He can only incur liability if he is at fault, by for example neglecting his supervisory duties. However, if the special relationship is a contract to store specific goods, the specific duty of care and main obligation of the contract includes not stealing or damaging the specific property. In this case, if the helper steals the stored goods, the connection to the performance of the obligation to store the goods safely is close enough to make the principal liable for the theft by the helper under § 1313a.48

Therefore, the behaviour of the helper is not always attributed, especially if it was intentional. In most cases only if the main contractual duties were breached, is the principal liable for intentional torts. Some scholars, however, do not draw the line according to main or secondary obligation, but according to the elevation of the risk of the particular harm through the contract and special relationship. If the harm is a typical disadvantage of the special relationship, then even intentional conduct is attributed.49 In practice both views lead to the same results. This limitation is questioned by some scholars, because it assigns too much importance to a contractual arrangement influenced by other interests than those which should be important for a possible liability and because some ‘typical’ risks of certain activities remain outside of the scope of liability.50

Because of the connection between the liability for helpers and a liability for dangerous activities based on special duties to maintain safety (‘Verkehrssicherungspflichten’), the criteria for the limits to attribution should not only be whether the use of helpers facilitated the tort in general, but also if the special legal relationship

44

Cf Ondreasova, Gehilfenhaftung 112 ff with further references. 45

OGH 1 Ob 643, 644/84 SZ 57/196; 3 Ob 296/98w ZVR 2000/102; Schacherreiter in

Kletečka/Schauer, ABGB-ON1.00_{§ 1313a note 66; Harrer in Schwimann}3 _{§ 1313a note 22; Koziol,} Haftpflichtrecht II2, 343; Koziol/Vogel, Austrian Law, in: Spier, Unification note 26 ff.

46

OGH 1 Ob 643/84 JBl 1986, 101; 7 Ob 400/97t SZ 68/106; Schacherreiter in Kletečka/Schauer, ABGB-ON1.00 § 1313a note 71 ff with further cases and references; Karner in KBB3 _{§ 1313a note 8;}

Reischauer in Rummel3 § 1313 a note 3; Koziol/Vogel, Austrian Law, in: Spier, Unification note 28.

47

Cf OGH 3 Ob 296/98w ZVR 2000/102; Koziol/Vogel, Austrian Law, in: Spier, Unification note 27. 48

OGH 7 Ob 400/97t SZ 68/106; Schacherreiter in Kletečka/Schauer, ABGB-ON1.00

§ 1313a note 73; Koziol/Vogel, Austrian Law, in: Spier, Unification note 28.

49 _{OGH 3 Ob 283/06y ÖBA 2007, 744 (Koziol); 3 Ob 526/87 SZ 60/133; 7 Ob 723/86 SZ 60/55;} 5 Ob 555/78 SZ 51/55, critical regarding 5 Ob 555/78 SZ 51/55 Harrer in Schwimann3 § 1313a Rz 23; Koziol, Haftpflichtrecht II2, 345; Ch. Huber in Schwimann, ABGB, Ta-Komm2 § 1313a Rz 14. Cf for theft OGH 3 Ob 283/06y ÖBA 2007, 744 (Koziol).

50

Ondreasova, Gehilfenhaftung 72 ff; Ch. Huber in Schwimann, ABGB, Ta-Komm2 § 1313a Rz 14 f; cf also Kim, ZEuP 2013, 263 (276 ff).

between principal and tort victim elevated the risk of damage occurring. Only if the risk of the particular damage is the same as it always is in life should there be no attribution.51

It is therefore suggested that the influence of the particular relationship between tort victim and principal should be regarded more intensely when determining if a close enough connection exists for attribution to take place than is currently the case. If the tort victim opened his sphere based on his trust in the principal because of their special legal relationship and the opportunity for the tort only arose because of said special legal relationship, the trust in the principal and the opened sphere due to both, then this should play a decisive role as far as attribution goes. Additionally, the tort victim has no possibility to stop the tort from occurring or control how much he opens his sphere by for example refusing entry to the helper because that would have negative consequence for him under contract law.52 Therefore, a theft by the helper of a repairman should be attributed the same way a theft of a helper of a safe keeper is. If the care for the specific stolen good was entrusted to the principal or if the sphere of the victim was opened to the principal and his helpers on the basis of the special relationship and the trust in the principal and left the victim no opportunities to avoid this opening of his sphere, then even the intentional behaviour of the helper has to be attributed regardless whether or not the main duty of the contract was violated.53