Liability and Couple Relationship - A contribution to legal obligations in family relationships and liability issues in internal and external relations

• Applicant: Professorin Dr. Claudia Mayer
• Subject Area: Private Law
• Term: from 2017 to 2019
• Project identifier: Deutsche Forschungsgemeinschaft (DFG) - Project number 391127786

There are numerous liability risks related to family relationships in internal as well as external relations, which have so far been handled primarily by the law of torts. It is striking that the family law is not linked back to the general debt law, although family relationships are normal obligatory relations. This classification under the law al­ lows for recourse to the provisions of the general debt law, not only with regard to remedies but also with a view to the ascertainment of obligations in internal relations. Above all, the recognition that family relationships being normal obligatory relations are focused on the reciprocal duty on consideration, resulting in a duty of the partners to inform the other on all circumstances substantial to the relationship, provides for a proper solution to many problems in marriage and family law. In particular, the cases of "side-jumps" and "cuckoo-kids", which are especially relevant in practice, as well as the subsequent questions of a maintenance regress by the pseudo­ fathers can be solved in an appropriate manner, if one bases one's argument on an obligation of a mother to provide early information about the possibility that the pseudo-father might not be the biological father and draws thereon, in the event of a breach, a liability of the mother, instead of assuming a mother's obligation to provide information about the identity of the potential biological father. While the latter obligation to provide information impermissibly interferes with the general right of personality of the mother (Article 2 (1) in conjunction with Article 1 (1) of the Basic Law), by reverting to an obligation of the mother to provide early information the informational interest of the father in his eventual non-fatherhood and the interest in confidentiality of the mother concerning her sexual partners can be brought into a fair balance. The same applies to similarly sensitive areas such as the one-sided and secret departure from family planning arrangements (for example, the secret withdrawal of contraceptives). In the external relations of family relationship, it has been shown that the affiliation or the emotional and familial relationship between the injured party and his partner as such cannot justify a reduction in the claims of the victim harmed directly or indirectly respectively cannot justify a limitation of the liability of the tortfeasor, in particular not by reason of contributory negligence on the part of the family member. Nor can a family relationship be regarded as a compulsory factor in the establishment of a claim to shock compensation, compensation for personal suffering due to the death or injury of a relative, or compensation in rescue cases. Therefore, an emotion­ al or familial relationship cannot establish an extension of the liability of the tortfeasor.

• DFG Programme: Publication Grants