Liability for business assistants and performing agents

Businesses rarely perform all their activities entirely with their own hands. They use employees, contractors, delivery services, installers or other assistants. When one of these people causes damage, the question is whether the business must answer for it.

Austrian law distinguishes in particular between contractual liability for performing agents under Section 1313a ABGB and non-contractual liability for business assistants under Section 1315 ABGB. The distinction affects the requirements that must be established and the facts that need to be proved.

This article explains how to assess a business’s area of responsibility, why calling someone an employee or subcontractor is not enough and which records make the sequence of events understandable.

A person does not become legally decisive merely because they work for a business. The relevant issue is the specific activity at the time of the incident. The mandate, means used, instructions and question whether the person was performing the business’s own duty or only carrying out an internal task must be identified.

Section 1313 ABGB is the starting point for liability for another person’s acts. As a rule, a person is not responsible for unlawful acts in which they did not participate unless the law provides otherwise. Section 1313a ABGB creates a specific attribution for contractual performance duties. Section 1315 ABGB, by contrast, concerns a principal who uses an incompetent or knowingly dangerous person for their affairs.

The guidance on accidents, traffic and insurance helps organise cause, liability and loss. The contract and the actual sequence of events must still be assessed in the individual matter.

Section 1313a ABGB provides that a person who owes a performance to another is liable for the fault of their legal representative and of the persons used for performance as for their own fault. A debtor therefore cannot simply argue that the mistake was made by an employee or subcontractor.

There must be a contractual relationship and a connection with the performance of the owed service. The assistant must act within the debtor’s sphere of interests. The Supreme Court describes the minimum attribution requirement as a connection between the third party’s culpable conduct and the performance of the contractual duties. Necessary preparatory acts may also be included.

This may concern a general contractor using subcontractors, a transport company using drivers or a trader arranging delivery through a service provider. The contractual partner does not have to have selected the individual employee. They do have to set out the breach and damage in a comprehensible way.

Section 1315 ABGB links liability to the principal using an incompetent or knowingly dangerous person for their affairs. It is therefore not enough that any assistant makes a mistake during a business activity. The statutory requirements must be examined separately.

Incompetence describes, according to the case law, a habitual condition. The person may lack the knowledge required for the work altogether or lack the necessary conscientiousness. A single moment of carelessness does not by itself prove habitual incompetence.

A knowingly dangerous person is likewise not simply anyone who creates a risk during an activity. The question is whether the principal knew of a specific dangerous quality and nevertheless used the person for the matter. The guidance on evidence and limitation shows how such facts can be organised.

In a contract for work, a mistake by a subcontractor may primarily be attributed under Section 1313a ABGB. If the issue is a general duty to protect an outsider from danger, the principal’s non-contractual liability for assistants will regularly be examined under Section 1315 ABGB. A general duty to organise a business safely does not replace the requirements of Section 1315 ABGB.

One person can have different roles during different parts of the same event. An installer may be a performing agent for the contractual installation but carry out another activity outside that mandate. The decisive issue remains the inner factual connection with the owed service or the specific business affair.

An independent contractor can also be a performing agent. An employment contract is not required. Nor does technical independence automatically remove attribution. The purpose for which the person was used is decisive.

The issue can arise for industrial companies, retailers, construction businesses, carriers, event organisers and service providers. The more closely the assistant is involved in performing the business’s own service, the closer the case is to contractual attribution under Section 1313a ABGB.

In a supply chain, each contract must be examined separately. A buyer often has a claim against its own contractual partner. There is no automatic contract between that partner and the subcontractor. A direct claim against the subcontractor may rest on other grounds and must not be inferred merely from the cooperation.

For damage outside the business’s own contractual duty, the injured person must identify the specific legal basis. Inadequate selection or knowingly using an unsuitable person may be relevant under Section 1315 ABGB. A mere organisational connection is not enough.

The first review should begin with a timeline. Record who gave the instruction, what task was agreed, who performed it, what information was available and when the damage occurred. Add the location, people present and immediate response.

Relevant records include contracts, service descriptions, orders, schedules, handover records, training records, qualifications, internal rules, emails and photographs. In an allegation of incompetence, earlier specific warnings, complaints or missing qualifications may matter. Such facts must be placed in their proper time and context.

For personal injury, medical findings and treatment records should form a separate group. For property damage, collect photographs, proof of ownership, repair invoices and value information separately. The damage documentation check helps organise the records.

A common mistake is treating a performing agent and a business assistant as the same legal category. Both terms refer to people helping another person, but the statutory connection differs. The contractual relationship and the task must be clarified first.

It is equally insufficient to say that a business is liable for every mistake made by its people. Section 1315 ABGB requires an incompetent or knowingly dangerous person and use of that person for the principal’s affairs. A single lapse is not automatically evidence of this.

Finally, loss and liability are often mixed together. Proof that a person made a mistake does not answer the amount of repair costs, treatment costs or other consequences. Each loss item should be shown with its cause, period and supporting record.

Start with the specific mandate. Mark the service that the assistant was meant to perform. Then compare the mandate with the actual sequence and identify deviations. This shows whether the person was performing a contractual duty or acting outside that framework.

Keep the selection review separate. Record which qualification was required, which evidence was available, who selected the person and whether known risks were discussed. These records do not replace legal assessment but make reconstruction easier.

Where several parties were involved, list each business in its own column. Assign the contract, task, person, breach and loss to the same row. The claim check helps with a first organisation of possible defendants and loss items.

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