Liability for the Acts of Performance Assistants: TBK m.116

Liability under TBK m.116 requires four conditions: (i) a valid obligation between the debtor and the creditor; (ii) the debtor's use of an auxiliary person to perform; (iii) damage caused by the auxiliary to the creditor while performing the task; (iv) the damage arising directly within the scope of the task.

Article 116 is a rule of contractual liability. No employment relationship between debtor and auxiliary is required; a sub-contractor, independent worker, family member or even a one-off helper may fall within the concept. What matters is participation in the actual performance.

Under TBK m.116, care in selecting, supervising or instructing the assistant does not by itself exonerate the debtor. TBK m.66 is also a form of liability without proof of personal fault, but provides defences concerning care and organisation of the business. It should not be described as ordinary fault-based liability.

Breach, loss and adequate causation must also be established. The assessment includes whether the debtor would have been liable had the debtor personally performed the assistant's act, often termed hypothetical fault. Proof that the damage would inevitably have occurred is not the debtor's only possible defence.

TBK m.66 (employer's liability) is tort liability applied between parties without a contractual relationship. The employer may escape by proving exercise of due care.

TBK m.116 creates contractual liability applied between the parties to an obligation; no exculpation by due-care proof is allowed. The two regimes may concur in the same facts; for the creditor, reliance on TBK m.116 is generally more advantageous.

Under TBK m.116/2, liability for assistants may in principle be excluded wholly or partly by agreement. Paragraph 3 makes that exclusion void where the activity requires expertise and permission by law or a competent authority. Its text does not add a separate general exception merely because the creditor is dependent on the debtor; other mandatory protective rules still apply.

Where the expertise and statutory or official-permission conditions in TBK m.116/3 are met, an exclusion of liability for assistants is absolutely void. This is distinct from the 'deemed unwritten' sanction in m.21. Whether an activity qualifies depends on its governing permission rules.

In contractual disputes, not only the signed text but also offer correspondence, revision history, invoices, delivery records, payment records, formal notices and the parties' subsequent conduct are taken into account. The formation, performance and termination of a contract often acquire meaning only through these ancillary documents.

Form requirements, authority of representation, penalty clauses, exclusion-of-liability provisions, standard terms and consumer-protection rules may all affect the validity or enforceability of a contract. For standard terms, the requirements of clear information, an opportunity to learn their content and acceptance under Article 21 of the Code of Obligations must be considered, together with any special consumer rules.

Before any dispute arises, the scope of obligations, delivery date, defect notice, default notice, interest and competent-court clauses should be drafted explicitly. Vague provisions may give rise to interpretation disputes and to difficulties of proof later on.