Court:

Federal Supreme Court 25.5.1938 (Steiggurt-case)

Articles:

ATF/BGE 64 II 254 (legal basis: art. 55 CO)

Facts:

An engineer charged with the repare work on overhead cables used a leather security belt. The belt had been repaired by the defendant saddler. Due to a poor repair work the belt didn´t work as security device and the engineer fell from the mast suffering severe injury.

Contractual claims did not succeed because the engineer could not establish that he had met the severe contract law requirement of product examination.

Decision:

The court held that the existence of a contract did not exclude tortious liability in cases where the bad execution of the contract also constitued a tort. The poor repair of a security belt was considered to be not only a violation of a contractual obligation but exposed the engineer´s life and health to a severe danger and was therefore considered an unlawful act under tort law.

Since the repair work was carried out by an employee of the defendant, the court based its decision not on art. 41 CO but on art. 55 CO. The court held that the security of human life and health depended on the proper execution of the repair work. The defendant was therefore obliged to make sure that the correct material and a high standard of care were used by his employees. Since the defendant had not even argued to have properly instructed and supervised his employees, he had not proven that he had taken all precautions which were appropriate under the circumstances in order to prevent damage of that kind and he was held liable under art. 55 CO.