Liability in the event of a recertification

Author: CEmarking TEAM | Last edited: 07.06.2020

Who is liable for damages in the event of a re-certification?

There are two different forms of liability: the more well-known and feared criminal liability and the civil liability. Both types of liability pursue different objectives and are based on different approaches.

Criminal liability provides a punishment for a misdemeanor or crime, while civil liability provides compensation for damages as reparation. In civil law, a distinction can still be made between contractual and tortious liability. For contractual liability, a contract between the parties is required. If obligations arising from the contract are culpably violated, liability is incurred. In tort law, there is no special relationship between tortfeasor and injured party.

If the strict liability is not taken into account, liability is only assumed for own fault. Fault - in civil law also called obligation to represent - is the generic term for intent and negligence. Also excluding legal nuances, the criminal and civil law concepts of intent coincide, while the definitions of negligence differ greatly.

Intent or negligence?

Intention is the term used to describe a knowledge and will directed towards the (deed) success in the awareness of the illegality. Negligence under civil law is defined as a failure to exercise the care required in traffic. This is an objective approach. Criminal negligence, however, considers the individual possibilities of the offender to be able to recognize the illegality of his actions when his mental and emotional powers are properly strained, and thus follows a subjective approach. Much is disputed here and should therefore not be presented, so as not to go beyond the scope of this article.

Criminal liability is only assumed for intent, unless (exceptionally) negligence is also punishable by law. This must be explicitly stated in the criminal law. Under civil law, the distinction between intent and negligence and the possible gradations of the same rarely play a role. Either there is talk of the obligation to represent or intent and negligence are mentioned equally.