Der vertragsbeherrschende Dritte

The thesis examines the prerequisites and legal-/ statutory consequences in situations, under which a third party controls a relationship between two separate contractual parties, because it exercises control over one of the parties. The grounds for this are to be found in possibilities of influence attributable to exchange- or organisational agreements. A third party control of the nature of a liability relationship is based on a power of control emanating from a special subsidiary association, according to section 311(2) No. 3 of the German ‘BGB – Bürgerliches Gesetzbuch’ (Civil Law Code), between the third party and another non-controlled contractual party. Any culpable liability based thereon can be designated as: ‘culpa in dominando adversus tertium’. This character appears alongside the long-established principle of ‘culpa in contrahendo’ enshrined and codified in section 311(2) and (3) of the foregoing German ‘BGB’ – Civil Law Code. With the assistance of this new case group, constellations can be solved, which up to the present time have been ignored under established juristic teaching, such as the principle of trust liability (‘culpa in contrahendo’ or non-contractual obligation). Mr. Felipe Temming illustrates this by taking corporate group liability law as an example and thus justifies the extemporisation of statutory dismissal protection under contracts of em-ployment from a corporate employer as an associated- or subsidiary member of a group of companies, towards- and including the ultimate controlling- or holding corporate entity.