Nearly all modern European legal systems recognize a more or less strict liability of principals for unlawful acts (law of torts/delict, general and lex Aquilia) committed by their employees within the scope of their employment. This functionally limited liability for the actions of employees is justified primarily by the argument that the employer can broaden his scope of action by employing vicarious agents; in exchange for the advantages resulting from the division of labour, the employer must also assume liability for increased risks to third parties. Employers can take out an insurance policy for damages or loss, and pass the costs on to their customers in the form of higher prices. Most European legal systems also recognize the liability of parents or other legal guardians for damage or loss caused by children or mentally disabled persons; this liability is based on a presumption of personal negligence.
2. Historical development
The idea of vicarious liability is not a recent one. Under Roman law, the pater familias was strictly responsible for all tortious acts committed by family members and slaves; known as ‘noxal liability’, this principle was in harmony with the economic and social views of the time. The father of the family could satisfy the claim of a wronged party either by paying a certain monetary fine or by handing over the person who had directly caused the loss or damage in question. Under certain variants of this principle, the principal could be held liable for the actions of his vicarious agents. As a matter of particular importance to subsequent historical development, various praetorian actions were established, which by virtue of their intended purpose expressly encompassed an obligation to assume liability for the actions of others. Thus, shipmasters, innkeepers and stablekeepers (nautae, caupones, stabularii) were responsible for acts of theft and property damage committed by their employees―whether they were slaves or free persons― in areas under their physical control. The liability of the house dweller (habitator) for damage or injuries caused when objects or fluids were thrown or poured out of windows (actio de effusis vel deiectis) was justified as a matter of public interest. Tax farmers (publicani) were responsible for tortious acts of the members of their familia. Due to the fact that in classical times the concept of familia was no longer based strictly on the status of the acting person, but rather on the actions performed within the scope of the publican’s duties, the publicanus could be held liable for the actions of free persons insofar as they assisted in the collection of taxes. On the other hand, he could also exonerate himself from liability for the actions of his slaves if they were not acting within the scope of duties assigned to them. In this from today’s perspective rather remote area of Roman law, we can thus observe a shift from status-bound noxal liability to functionally limited liability for the actions of vicarious agents.
The problem of liability for the acts of others, moreover, was repeatedly passed in situations where contractual (or other) obligations existed between the parties at the time of the conduct that resulted in damage or loss. Especially important in this regard, from the perspective of historical development, is the fragment on the column transport Gai. D. 19,2,25,7. The column in question was broken in the process of being transported under a contract for work. In the opinion of the Roman jurist Gaius, the debtor was to be responsible for the risk if the damage had been caused due to his own fault or due to the fault of persons whose services he had utilized for that purpose. The formulation of this fragment served as the model for some European codifications, including § 278 of the German Bürgerliches Gesetzbuch (BGB), which establish a strict liability for the actions of auxiliaries in the event of an obligatory relationship between the principal and the wronged party (see below).
The Roman cases of vicarious liability, including the liability of the publicanus, nauta, caupo and stabularius and the actio de effusis vel delectis, were later to a large extent adopted into the ius commune. Various regional statutes also recognized instances of vicarious liability, including the liability of the house owner for damage or loss caused by fire that spread from his house to a neighbour’s property. However, because noxal liability, which had been the central Roman instance of vicarious liability, had become obsolete with the abolition of slavery, the authors of the ius commune did not agree on how the resulting gap in the liability system should be closed. Hugo Grotius, for example, argued for liability only up to the amount of outstanding wages of the servant, in accordance with local custom. Other authors such as Johannes van der Linden, whose thinking was influenced by natural law, argued that a generally formulated form of the pater familias’ personal fault should be the prerequisite for liability for the actions of his servants. However, the most influential argument was the one that conforms to the prevailing concept today, namely that of strict liability of the principal for the tortious acts of auxiliaries committed in the course of performing the duties assigned to them. This functionally limited liability for the actions of others can be traced back to a commentary by Bartolus de Saxoferrato in the 14th century, in which he expressed the general principle in the specific context of the publican’s liability. In the 18th century, this principle was advocated with reference to the praetorian actions by Johannes Voet in Holland and by Robert-Joseph Pothier in France, whose arguments came to be the model for the modern rule in Art 1384 (5) of the French Code civil (see also Art 2049 Italian Codice civile).
In English legal literature, this principle has been known since the work entitled ‘Doctor and Student’ by Christopher St Germain (1460–1540). Jurists educated in Roman law, who were known as ‘civilians’, had long dominated the administration of justice in areas of commercial and maritime law. For that reason, the liability of the nauta for the tortious acts of his people was incorporated into English law by the Court of Admiralty. It would therefore seem to be not a coincidence that the first common law decision on vicarious liability, Boson v Sandford (1691) 2 Salk 440, related to the liability of the shipmaster for the wrongful acts of his vicarious agents. Lord Holt, who possessed extensive knowledge of Roman law, formulated the concept of vicarious liability in general terms and by that means created a legal principle that became generally accepted in all common law legal systems up to the present day. The influence of Roman law was likewise discernible in the subsequent decision, Turberville v Stampe (1698) 1 Ld Raym 264. Although the judgment related to fire damage, Lord Holt justified the master’s liability for the actions of his servant by way of the following sentence, inserted somewhat arbitrarily into the reasoning of the judgment and referring to the actio de effusis vel delectis: ‘But if my servant throws dirt into the highway, I am indictable’. Like Pothier in France, Lord Holt in England derived the doctrine of vicarious liability in a general manner from the conceptual bases of the Roman legal tradition.
By contrast, the German Bürgerliches Gesetzbuch (BGB) never arrived at such a strict liability for the tortious acts of others. In the liberalistic 19th century, the pandectist fault principle formed the ethical basis for the law of torts. In this spirit, the functionally limited liability for vicarious agents set forth in § 831 BGB was rooted in the (presumed) personal negligence of the principal, in the sense of a culpa in eligendo vel custodiendo (see also Art 55 of the Swiss Code of Obligations (OR)).
Following the demise of the Roman concept of noxal liability on the part of the pater familias for the tortious acts of his slaves and family members, there was a need to define not only vicarious liability for the actions of auxiliaries in the modern sense, but also the independent responsibility of parents for the wrongful acts of their underage children.
3. Vicarious liability in modern European legal systems
a) Liability of the principal for the tortious acts of his auxiliaries
After what has been said before, the functionally limited liability for the actions of auxiliaries is a firmly established structural element of modern European jurisprudence. Primary interest is devoted to the practically significant liability of the employer for wrongful acts of his employees committed within the scope of their employment. This principle also applies when the relevant rules do not expressly require the existence of an employment relationship; instead, the tortious acts of other, more broadly defined parties, such as the préposé (Art 1384 French Code civil), the ondergeschikte (Art 6:170 Burgerlijk Wetboek (BW)) or the person ‘appointed to perform a task’ (§ 831 BGB), can also give rise to liability on the part of the principal. However, apart from a few exceptional cases, as in the case of a so-called ‘non-delegable duty’ of the principal under English law a liability for the misconduct of an independent contractor is not recognized. The majority of European legal systems recognize a strict liability of the principal, ie without requiring any personal breach of duty on his part (cf Art 1384 (5) French Code civil; Art 1384 (3) Belgian and Luxembourg Code civil;Art 922 Greek Civil Code; Art 2049 Codice civile; Art 500 Portuguese Código civil; Art 6:170 BW). Some codes, on the other hand, base liability on a presumption of personal negligence in the form of faulty selection or supervision (cf Art 1903 (4) and (6) Spanish Código civil; § 831 BGB and Art 55 Swiss Code of Obligations (OR)). In practice, however, the theoretical possibility of exculpation hardly becomes relevant. In the practical application of Spanish law, for example, it has become virtually impossible to refute the presumption of fault. In an impressive display of ingenuity, the German courts have developed numerous paths to evade or circumvent the possibility of exculpation set forth in § 831 BGB. The rule of 1315 of the Austrian Allgemeines Bürgerliches Gesetzbuch (ABGB) holds a certain special status in this regard. According to this provision, personal fault must be demonstrated in order to establish liability of the principal, unless the wronged party can prove that the auxiliary is ‘unfit’.
The liability of corporate bodies (and partnerships with partial legal capacity, which are deemed equivalent to corporate bodies for this purpose) is consistently regarded as strict. Special statutory rules normally apply to cases of state liability.
The chief characteristic of an employment relationship, which is regularly required in order to establish liability, is the employee’s subjection to the directions of the employer. In modern times, however, this is no longer an absolute prerequisite. The absence of an obligation on the part of the employee to follow his employer’s directives can be offset by other considerations. In particular, the integration of an employee into the employer’s organizational structure, as in the case of professionals who cannot be supervised by a manager for lack of sufficient expertise, constitutes one such example. Systematic difficulties are posed by the question whether and to what extent the principal can be held liable outside of the scope of normal employment contracts, and especially whether one is dealing here with additional categories or with a uniform principle. In those codifications in which the existence of an employment contract is not specified, and where liability is instead attached more neutrally to concepts such as being of a préposé or ondergeschikte or having been appointed to perform a task, liability may, in peripheral areas, be deemed to exist by virtue of the auxiliary’s obligation to follow directives. This can be the case even when an activity is performed without valuable consideration for a friend or neighbour. English law (like the BW in Art 6:172) recognizes another category of vicarious liability, namely the liability of the principal for the wrongful acts of his agent. Aside from situations involving agency, this principle also extends to the responsibility of a car owner for the driver of his car.
As the second requirement for liability, there must be an intrinsic relationship with the tasks delegated to the auxiliary. In order to ascertain whether this requirement is met in any particular case, a normative analysis is necessary which has to take account of numerous factors. This element of liability is broadly construed in modern times. Depending on the nature of the employee’s activities, and especially also on the existence of a legal relationship between the employer and the wronged party, liability may be found to exist even in the case of a personally motivated, wilful commission of a criminal offence.
Finally, the principal’s liability is contingent on the commission of a tortious act by the auxiliary. In many cases, however, the latter will not be under a personal obligation to pay damages. This is either because no direct claim existed from the beginning, or because he is entitled to be relieved from any liability by his employer, or because recourse by the insurance company against the employee is excluded.
b) Contractual liability for auxiliaries
In addition to the (quasi)-tortious vicarious liability, some European legal systems specifically provide for statutory rules relating to contractual liability for auxiliaries (cf § 278 BGB; Art 334 Greek Civil Code; Art 474 Polish Civil Code and § 1313a ABGB). In such cases, the rule is that the principal must be liable for the fault of his auxiliaries (employees and independent contractors alike) to the same extent as for his own fault. The same principle seems to be recognized in all other European legal systems, even in the absence of express rules to that effect because it is inherent in the nature of contractual obligations. Anyone who contractually assumes an obligation will be held strictly liable to do, or to give what he has promised by virtue of the contractual agreement, even if he avails himself of the service of another person.
c) Liability of legal guardians
The rules applicable to the liability of legal guardians for children, legally incapacitated persons and other persons requiring protection vary throughout Europe. Most European legal systems have separate statutory rules on the liability of parents (as well as adoptive parents and usually also legal guardians) for damage or loss caused by their children (Art 1384 (4) and (7) French Code civil; Art 1384 (2) and (5) Belgian and Luxembourg Code civil; Art 1903 (2) and (6) Spanish Código civiland Art 20 of the Spanish Code Penal; Art 923 Greek Civil Code; Art 2048 Italian Codice civile; Art 491 Portuguese Código civil; Art 6:169 Burgerlijk Wetboek (BW); § 1309 ABGB; and § 832 BGB). In most countries, such liability is based on presumed personal fault (as in Germany, Greece, Italy and Luxembourg, whereas in Austria proof of a breach of duty still lies with the victim) and may depend on whether the child lives at home. Usually, the severity of the liability diminishes with the increasing age of the child, often accompanied by an increase in the child’s own personal liability (see in particular the definition of three age groups in Art 6:169, 6:162 BW). A special role is played by French law, which since a ruling of the Court de Cassation from the year 1997 regards the parents’ liability as strict and consequently no longer allows an exculpation (Civ 2e, 19.2.1997, D. 1997, 265). At the other end of the spectrum, English law does not recognize a special rule concerning parents’ liability but subsumes that liability under the general liability for negligence, which must be proven by the wronged party. The same appears to be the case in the Scandinavian legal systems. When parents contractually delegate their duty of supervision to another person, that person can also be held liable for a presumed failure of supervision in certain legal systems (§ 832 (2) BGB; Art 932 (2) Greek Civil Code; and Art 491 Portuguese Código civil), while other legal systems rely on the normal liability for negligent omissions (Belgium, France, Italy, Luxembourg, the Netherlands, Spain). Concerning the responsibility of legal guardians for mentally disabled persons, three basic positions can be identified, just as in the case of parents’ liability. They range from strict liability (France, Art 1384 (1) Code civil), to liability based on presumed personal fault (Art 2047 (1) Codice civile; Art 427 Polish Civil Code; Art 491 Portuguese Código civil; Art 1903 (2) Spanish Código civil; § 832 BGB, Art 923 Greek Civil Code) to liability for negligence on the basis of the general requirements for tortious liability (England, the Netherlands).
4. Uniform law
Proposals for European rules on vicarious liability can be found in the Principles of European Tort Law of the European Group on Tort Law and in the Common Frame of Reference (CFR), which is taken almost verbatim from the preliminary studies of the Study Group on a European Civil Code. According to Art 6:102 (1) PETL, a person is liable for damage caused by his auxiliaries acting within the scope of their functions, provided that they have infringed the required standard of conduct. Subparagraph 2 specifies that an independent contractor is not regarded as an auxiliary for the purposes of that article. Thus, the rule proposed in the PETL clearly and succinctly formulates the principle of functionally limited liability for the actions of vicarious agents that is recognized throughout Europe. Article 6:102 can also be applied to the tortious acts of directors and officers of a corporate entity. The principle of functionally limited liability for the actions of vicarious agents is expressed in somewhat more detail in Art VI.-3:201 DCFR. Here, liability depends on damage or loss having been caused in the performance of a task provided the damage or loss can be attributed to the auxiliary; the same principle applies to representatives of a legal person who are authorized to effect ‘juridical acts’ on behalf of the legal person by its constitution. The principle that the debtor under a contractual obligation is strictly liable for the fault of his auxiliaries, is clearly expressed, on a European level, by Art 8:107 PECL: whoever entrusts performance of a contract to another person remains responsible for the performance (see also Art III.-2:106 CFR).
Under Art 6:101 PETL, anybody who is in charge of a minor or a person subject to mental disability is liable for damage caused by the latter unless he proves that he has conformed to the required standard of conduct in supervision. This rule bases liability on a presumed personal fault of the guardian; thus it takes the via media among the three basic approaches encountered in the national European legal systems (see above). However, Art 6:101 differs from the majority opinion of Member States insofar as the person who has committed the act in question is not required to have infringed the law; he merely has to have ‘caused damage’. Under Art VI.-3:104 CFR, parents are held liable for damage caused by their children under the age of 14 provided it would constitute intentional or negligent conduct if it had been the conduct of an adult. Apart from that, institutions or other bodies charged with supervisory duties are held liable for personal injury or property damage caused by persons to be supervised if the conduct in question would be considered to constitute negligent or intentional conduct (if committed by an 18-year-old) and if the persons in question are likely to cause damage of that type. Both rules set forth in Art VI.-3:104 CFR are based on the presumption of personal negligence in the exercise of supervisory duties.
Trafford Barlow, The South African Law of Vicarious Liability in Delict and a Comparison of the Principles of other Legal Systems (1939); David Johnston, ‘Limiting Liability: Roman Law and the Civil Law Tradition’ (1995) 70 Chicago Kent Law Review 1515; Reinhard Zimmermann, The Law of Obligations (1996) ch 32; Christian von Bar, Gemeineuropäisches Deliktsrecht, vol I (1996) § 2 II, III and § 3 II.2; Hartmut Wicke, Respondeat Superior: Haftung für Verrichtungsgehilfen im römischen, römisch-holländischen, englischen und südafrikanischen Recht (2000); Jaap Spier (ed); Unification of Tort Law: Liability for Damage Caused by Others (2003); European Group on Tort Law, Principles of European Tort Law (2005) ch 6; Cees van Dam, European Tort Law (2006) ch 16.