Definition and basic principle of negligence In the legal context, negligence describes the failure to exercise due care in traffic. It occurs when a person disregards the duty of care that a conscientious and prudent person would fulfill in the same situation. The key factor here is the objective consideration of what care can and must be expected in the specific circumstances. Negligence therefore presupposes that the person acting could have avoided the occurrence of damage or a factual outcome if the required duty of care had been observed.

Negligence in civil law (Section 276 (2) BGB) In civil law, negligence plays a significant role, particularly in the case of liability for damages. According to Section 276 (2) BGB, negligence is defined as the failure to exercise due care in traffic. This means that a person is obliged to take those measures that are necessary and reasonable to prevent damage. Disregarding this obligation can lead to claims for compensation if damage is caused as a result. In contracts, liability for simple negligence is often limited or excluded; however, such a limitation of liability is usually not permitted for gross negligence (Section 277 BGB) and intent.

Distinction between simple and gross negligence Civil law also distinguishes between simple and gross negligence. Simple negligence occurs when the care required in traffic is recklessly disregarded. Gross negligence, on the other hand, refers to a particularly serious breach of the duty of care in which basic and elementary precautions have been disregarded. This differentiation has a significant impact on liability, as gross negligence can often not be effectively excluded by contract, while simple negligence may regularly be limited.

Negligence in criminal law (Section 15 StGB) In criminal law, negligence is only punishable if it is expressly provided for by law (see Section 15 of the German Criminal Code – StGB). Negligence in the sense of criminal law also requires the failure to exercise due care and the foreseeability of the result of the offense. Numerous criminal offenses, such as negligent bodily injury (Section 229 StGB) or negligent homicide (Section 222 StGB), are expressly based on negligence.

Conscious and unconscious negligence In criminal law, there is a further differentiation between conscious and unconscious negligence:

• Deliberate negligence: In this case, the perpetrator recognizes the possibility that his actions could lead to damage or a criminal offence, but, contrary to his duty, trusts that the actual outcome will not occur (“it will be all right”).
• Unconscious negligence: In the case of unconscious negligence, the perpetrator does not even recognize the possibility of damage occurring, although he could have recognized this with due care. He acts without realizing the possible consequences of his actions.

The distinction between conscious negligence and contingent intent (dolus eventualis) is often difficult, but is decisive for the assessment of criminal liability and sentencing.

Practical significance and consequences of negligence The legal significance of negligence is considerable in both civil and criminal law. Under civil law, it has a decisive influence on claims for damages and liability risks, while under criminal law it determines whether an act is punishable. In practice, the assessment of whether negligent behavior exists always requires a precise examination of the specific circumstances and an objective consideration of the duties incumbent on the person acting. A precise distinction between intent and negligence as well as between simple and gross negligence is therefore essential in order to be able to correctly assess the legal consequences of conduct.

Summary and outlook Overall, negligence is a central concept for assessing behavior in different areas of law. It requires an objective assessment of the act in the context of the required duty of care and largely determines the legal consequences for the person acting. Due to its complexity and the effects on liability and criminal liability issues, the precise definition and delimitation of negligence is of great importance and is regularly the subject of judicial and legal examinations.