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Multiple perpetrators

Damage can also be caused jointly by multiple perpetrators if their conduct is causally related to the same damage. In this case, it must be examined separately for each party involved whether their conduct was causal, unlawful, and culpable. Causality may lie not only in the action causing the damage, but also in the fact that one of the parties involved did not control or correct the other. Illegality exists if the behavior violates legal or contractual obligations, for example through inadequate performance. Finally, there must also be fault, i.e., at least slight negligence, if the injuring party fails to exercise due care. Entrepreneurs A and B jointly manufacture a machine for their customer C. The machine is delivered defective because A has incorrectly dimensioned a component. The defect results in 10 tons of chocolate being destroyed in C's production facility.

Both A and B are causally responsible for the damage (B possibly through failure to carry out an inspection or repair), which also leads to the unlawful destruction of C's chocolate. Due to the contractual obligation, at least slight negligence can be assumed, from which A and B cannot exonerate themselves. A and B have thus jointly caused the same damage.

The fact that several tortfeasors have contributed jointly to the damage through their respective causal, unlawful, and culpable conduct means that, legally, they must also be jointly liable for the entire damage. Joint and several liability is thus the legal consequence of jointly causing damage. Anyone who causes damage jointly with another person is therefore not only liable in proportion to their own contribution to the cause, but jointly and severally for the entire damage. This ensures that the injured party receives full compensation even if one of the injuring parties is unable to pay. However, the injured party may only be compensated in full once, i.e. they cannot claim the full amount of the damage twice.

It follows directly from the joint causation of damage by A and B that both are jointly and severally liable to C. C can therefore claim the entire damage – the loss of 10 tons of chocolate – from either A or B, but not from both. After one of them has compensated for the damage, A and B can settle among themselves who is ultimately responsible for which share.

Once one of the tortfeasors has compensated the injured party for the entire damage, the injured party is fully satisfied and the obligation of the other tortfeasors to pay compensation expires in the external relationship. However, the tortfeasor who has compensated for the damage can reclaim those portions of the damage that are to be borne by the others according to their respective responsibility (recourse). The recourse liability is based on the degree of fault and the contribution to the damage of each individual tortfeasor. The decisive factor is therefore the extent to which the conduct of the respective co-tortfeasor contributed to the damage and how serious their fault is. If a tortfeasor is particularly responsible for the damage or if his or her action was the main cause of the damage, he or she will be assigned a greater share of liability in the internal relationship. Conversely, a tortfeasor whose contribution to the damage was only minor or who acted with only slight negligence is liable for a correspondingly smaller share.

If, for example, B pays the entire damage to C, C's claim is fully satisfied – C can no longer claim the same damage from B. However, B has a right of recourse against A in the internal relationship. B can reclaim from A that portion of the damage that corresponds to A's fault and contributory cause.

The risk of insolvency plays a central role in joint and several liability (solidary liability). In theory, solidary liability means that the injured party can claim their entire damage from any of the injuring parties. They do not have to worry about who caused what share of the damage or who is financially capable of paying. The purpose of this rule is to protect the injured party and ensure that they are fully compensated, even if one of the injuring parties is insolvent or bankrupt. As a result, it is not the injured party but the remaining injuring parties who bear the risk that one of them cannot fulfill the claim for compensation due to insolvency.

If A is insolvent, C can demand full compensation from B. B is therefore liable for the full amount of the damage, even though A originally caused the fault. In theory, B could then take recourse against A, but in practice this would be unsuccessful because A is no longer able to make any payments. The insolvency risk of A is therefore borne B solely by B. This result is consistent with the system of joint and several liability, in which the risk of insolvency lies not with the injured party but with the other parties responsible for the damage.

Contributory negligence

In tort law, there is generally no prohibition on damaging one's own assets or acting in a risky manner. Everyone has the freedom to dispose of their property at their own discretion, even if this could lead to its loss.

If damage was caused not only by the conduct of one or more tortfeasors, but also by the conduct of the injured party itself, the principle of contributory negligence applies. This means that the injured party must bear the damage itself to the extent that it independently contributed to its occurrence or increase. Contributory negligence thus serves as a fair balance between the injuring party and the injured party: it would be unfair if the injured party behaved completely carelessly or unreasonably and could then pass on the entire damage to a third party. Anyone who (co-)causes damage through their own misconduct should therefore also bear this share themselves. This principle thus protects the injuring party from excessive liability and ensures that the damage is divided proportionally: the injured party is only compensated for the part that they did not cause themselves, while their own contribution to the damage is appropriately taken into account.

In the context of contributory negligence, the injured party is treated similarly to a co-injuring party. This means that their own behavior is also subject to legal scrutiny as if they were the injuring party themselves. Contributory negligence presupposes that the injured party has violated those duties of care that they should have observed in their own interest and which would also constitute unlawful and culpable behavior in relation to third parties. In this case, the behavior of the injured party may be taken into account to reduce the claim. In this way, the law treats the injured party in a certain way as a “self-injurer”, thereby reducing the liability of the other injuring parties.

A mountain bike manufacturer sells a bicycle that is intended for use on unpaved terrain. Buyer K is using it on a mountain trail when the pedal comes loose due to faulty assembly. K falls, suffers serious head injuries, and the bicycle is damaged. K was not wearing a helmet, even though the instructions expressly recommend doing so. A helmet would have prevented or significantly mitigated the injuries. K's injuries (pain and suffering, treatment costs) and the damage to the bike are considered compensable damages.

Even if the mountain bike manufacturer's liability is affirmed, it is clear that K's actions contributed to the severity of the injuries. Not wearing a helmet was negligent and contributed significantly to the severity of the head injuries. However, this behavior was not the cause of the damage to the bicycle.

Not wearing a helmet is negligent (in one's own case), as wearing a helmet is expected of an average careful cyclist in dangerous situations, such as riding on a challenging trail. The buyer accepted his own risk (negligence) here, which could have been avoided.

Since both the manufacturer and K contributed to the head injury through their respective behavior, the total damage must be apportioned. As far as the damage to the bicycle itself is concerned, the damage is not to be apportioned.

Summary

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