Companies deal in licenses that they rent from companies like Microsoft, etc., and then rent to end users. Many companies have subcontractors who work for them. To what extent are they actually liable for the performance of the upstream suppliers and the subcontractors? Actually, one would say, yes, they are liable, as for their own fault. But this is unclear due to a case law of the BGH, which applies to the situations of the transhipment business in the law of sales.
I: Liability for the pre-supplier
1.) No-fault claims
The first question depends on which claims are asserted by the "end customer" (customer of the IT company that passes on the pre-supplier's products). This is because there are claims under warranty law that are not based on fault, such as claims for rectification of defects, reduction of the purchase price, etc., and claims for damages. The IT company is liable for these claims if the upstream supplier or subcontractor has breached its contractual obligations.
2) Claims based on fault
In the case of fault-based claims - and this is the claim for damages - the matter is complex. This is due to a case law of the BGH (VIII ZR 315/19- 9.6.2020, st.Rspr. since 21.6.1967), which has determined for the law of sales that the dealer is not liable for the manufacturer according to § 278 BGB. The wording of § 278 BGB actually states quite simply that the provider of a service is liable for the fault of the subcontractor as for his own fault. Now, one would think that the seller of an item would be liable for the faults of the subcontractor in the same way as if he had built and sold the item himself. But he is not. The supplier is not a subcontractor in the law of sale.
a.) Purchase contract
If the IT company only sells hardware, the seller is not liable for damages for a defectively manufactured product, unless the company did not select the supplier with due care.
b.) Rental agreements
More difficult - simply because the case law here is too old to allow reasonable conclusions and, moreover, does not originate from the field of IT - is the area of tenancy law.
Tenancy law is applicable if you run your application in a data center. Is one now liable for failures of the data center under tenancy law? Is one liable for damages if certain functions in "365" do not work?
That is difficult to answer.
In essence, the question is whether the subcontractor was commissioned only to fulfill the prerequisite for the performance (then no liability) or alternatively to fulfill the performance act and the associated protection obligations.
However, this distinction does not apply to IT law because the act of performance (in this case, for example, the provision of the software and its regular maintenance) is an intrinsic prerequisite for procurement. The existing case law, which is partly very old and does not originate from the IT area, does not fit. Liability is affirmed in cases where the landlord uses his own craftsmen for the maintenance or operation of a rental object.
But this is not done by the company, which only forwards "Microsoft 365" or has its software installed in a data center.
But there is a case law according to which the IT company is liable for supplying TC operators or for the companies that perform the "maintenance work" or service work on the rental object. Then the liability would be given again.
Additionally:
a.) Differentiation
aa.) A distinction must be made between cases in which a service of the supplier is merely passed on or the service of the supplier is only a partial service of the own service. It is therefore different if the services of a data center are only passed on or if hosting and managed services are provided. In this case, it will be necessary to differentiate what the cause of the damage is.
bb.) Secondly, case law does not say anything to the contrary on the subject of liability if one "assembles" one's own service from third-party components, i.e., operates one's software in a data center or passes on "Microsoft 365" to the customer as a component of one's own solution. In these cases, you are liable.
3.) Conclusion
By this I mean that there are certain sectors in IT law where it is not clear whether and to what extent the IT company is liable for the errors of the upstream suppliers under rental law. The case law of the BGH refers to the "handling business", which often has nothing to do with IT.
