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Burim Pavataj
Title
Dr.
Last Name
Pavataj
First name
Burim
Email
burim.pavataj@unisg.ch
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PublicationDie deliktischen Organisationspflichten : ein Beitrag zum Befreiungsbeweis des Geschäftsherrn nach Art. 55 OREven more than 120 years after its introduction, there is no clear opinion on the conception and legal nature of principal's liability. Recent academic tendencies in some cases with the support of representatives of the theory of improper conduct have tried to modernise the norm and adapt it to todays conditions. Following these approaches, the allegation of a breach of the duty of care is the central connecting factor for liability. With the granting of proof of exemption, the principal is enabled to prove that he has acted without reproach. Consequently, the principal's liability is to be regarded as a legally concretised special element of fault liability with a reversed burden of proof. What is sanctioned is the breach of the principal's duty of care, which establishes a duty to accept responsibility for the conduct of the auxiliary persons under his control. What distinguishes Art. 55 CO from the general clause (Art. 41 CO) is the fact that the duties of conduct in case of tort are not performed personally by the principal but by his auxiliaries, in a division of labour. The principal is bound to ensure the organisational fulfilment of these duties of conduct. The primary duty of conduct on the part of the principal thus becomes an organisational duty through the involvement of auxiliary persons. The fulfilment of organisational duties, which are far more diverse than the classic proof of proper selection, instruction and supervision would suggest, forms the subject matter of the proof of exemption. In this respect, Art. 55 CO is to be regarded as a general clause for the liability of organisations. An organisation here represents the composition of human and material resources that are brought together in the form desired by the principal.Type: doctoral thesis