⚖️ Liability and contributory fault
In brief
The keeper of a car is in principle liable for damage arising from the operation of the car. This applies even without any fault of their own. The driver can be liable too.
If you are partly at fault yourself, your claim for compensation is reduced. This is called the liability quota.
- Example: with 30 percent contributory fault you get 70 percent of your damage.
- Lawyer's costs are also reimbursed according to the quota.
- Between two vehicles, what matters is who mainly caused the damage.
Do not agree to a quota too quickly. Have it checked.
Step by step
- Record what happenedSecure a sketch, photos, witnesses, the accident report.
- Check the quotaDo not accept the insurer's proposal unchecked.
- Organise evidencePut together proof of the damage and of what happened.
- Get adviceIf fault is disputed, hire a lawyer specialising in traffic law.
Deadlines
- Contributory fault reduces your claims but does not automatically lead to the loss of all claims.
- The absence of fault on the other party's side does not automatically rule out liability for operating risk.
- Concessions made at the scene can later be used against you.
- Children under 10 are not liable towards motor vehicles in road traffic for negligent conduct if the typical danger of motor vehicles in moving traffic materialises (§ 828 Abs. 2 BGB); this does not apply to parked vehicles.
In depth · legal basis, figures and practice – for advisers and professionals
Strict liability, § 7 StVG
If, in the operation of a motor vehicle, a person is killed, their body or health is injured or property is damaged, the keeper is obliged to pay compensation. Liability is excluded in cases of force majeure. In the case of unauthorised use (Schwarzfahrt), the user is primarily liable; the keeper remains jointly liable only if they culpably made it possible. § 8 StVG lists exceptions, including for vehicles which, by design, cannot travel faster than 20 km/h.
Driver's liability, § 18 StVG
The driver is also liable under § 18 Abs. 1 StVG. Their fault is presumed; they can exonerate themselves if they prove that the damage was not caused by their fault.
Several motor vehicles, § 17 StVG
§ 17 Abs. 1 to 3 StVG applies between vehicle keepers. Towards pedestrians and cyclists, the keeper's liability is excluded only in cases of force majeure (§ 7 Abs. 2 StVG). The keepers' duty to compensate one another depends on the extent to which the damage was mainly caused by one party or the other. Liability is excluded for the keeper if the accident is caused by an unavoidable event, and an event counts as unavoidable only if keeper and driver observed all the care required in the circumstances of the case. Under § 17 Abs. 3 Satz 2 StVG, this additionally requires that the accident was not due to a defect of the vehicle or a failure of its equipment.
Contributory fault, § 9 StVG, § 254 BGB
If fault on the part of the injured person contributed to the damage, § 254 BGB applies: the extent of the duty to compensate depends on the circumstances, in particular on the extent to which the damage was mainly caused by one party or the other. Contributory fault also includes failing to mitigate the damage (§ 254 Abs. 2 BGB).
Children, § 828 Abs. 2 BGB
The liability privilege for children aged 7 to 10 applies only if the typical danger of the motor vehicle in moving traffic has materialised, not for parked vehicles (BGH 30 November 2004, VI ZR 335/03 and VI ZR 365/03).
Quotas
Specific quotas for typical situations were not verified here from primary sources. They depend on the individual case and on case law.
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